THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


A   SERIES   OF   NARRATIVES,    DIALOGUES,    BIOGRAPHIES,   AND   TALES, 

FOR   THE    INSTRUCTION   AND    ENTERTAINMENT 

OF   THE    YOUNG. 


BY 


tnitjj 


NUMEROUS  AND  BEAUTIFUL  ENGRAVINGS. 


Entered,  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hnndred 
and  fifty-four,  by 

HARPER    &    BROTHERS, 
in  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  New  York. 


THE    LITTLE   COURT  OF   MORNINOD ALE. 


HARPER    &    B  ERS,  PUBLISHERS 

I  "':    ;"'£• '"' 


Entered,  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred 
and  fifty-seven,  by 

HARPER    &    BROTHERS, 
in  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  New  York. 


o  f>  o 
Q 

PREFACE, 


THE  disputes  and  contentions  which  arise  among  boys  in  their 
intercourse  with  each  other,  in  school  or  at  play,  though  very  dif 
ferent  in  respect  to  the  subjects  of  them,  are  very  analogous  in  na 
ture  to  those  that  occur  among  men  in  the  serious  business  of 
life,  and  are  to  be  settled  on  substantially  the  same  principles. 
There  are  not  many  companies  of  boys  that  would  be  capable  of 
organizing  and  managing  a  court,  as  Justin  did  at  Morningdale, 
for  boys  generally  have  not  sufficient  self-control  to  conduct  such 
proceedings  in  a  quiet  and  orderly  manner.  It  is  not  impossible, 
however,  that  some  of  the  readers  of  these  reports  may  make  the 
experiment,  and,  at  any  rate,  it  is  certain  that  all  who  read  them 
attentively,  and  in  a  thoughtful  manner,  will  learn  from  them  a 
great  deal  in  respect  to  the  principles  of  natural  justice  and  right, 
and  will  be  better  able  to  guard  against  the  danger  of  getting  into 
needless  quarrels  themselves,  and  also  to  assist  in  settling  the  dis 
putes  of  others,  after  the  perusal  than  before. 


622808 


CONTENTS, 


CHAPTER  PAOI 

I.    THE    COURT 13 

II.    AN   ALIBI 33 

III.  THE    PHILOPENE 45 

IV.  BARGAIN    NOT    CONCLUDED 53 

V.    ONE    THING    AT   A    TIME 70 

VI.    STILL   ONE    THING   AT    A    TIME 81 

VII.    THE    HATCHET    QUESTION    SETTLED 89 

VIII.    CONFESSION 109 

IX.    INSUBORDINATION 129 


ENGRAVINGS, 


CAMP  ON  FIBE Frontispiece. 

THE    FIRST   JURY 29 

THE    FISHING-POLE    IN    BROADWAY 57 

SEIZING    A    HATCHET 83 

THE    SQUIRREL   CAUGHT 98 

HOW    IT   WAS    DONE 121 

THE   PORTAGE 139 


JUDGE   JUSTIN, 


i. 

THE   COURT. 


Judge  Justin's  court.  The  school  of  Morningdale.  The  play-grounds. 


little  court,  the  proceedings  of  which  are  to  be  reported  in 
this  volume,  pertained  to  a  school  of  boys  which  was  establish 
ed  in  a  very  pretty  little  valley  forming  a  branch  of  the  valley  of 
the  Bronx,  a  few  miles  above  New  York,  on  the  route  of  the  Har 
lem  Rail-road.  The  name  of  the  school,  which  was  derived  from  the 
name  of  the  valley  in  which  it  was  situated,  was  JVlorningdale. 

The  school  was  kept  in  a  large  and  old-fashioned  stone  house, 
which  was  half  buried  under  the  foliage  of  the  trees  and  shrubbery 
that  surrounded  it.  There  were  attached  to  it  a  great  many  out 
buildings,  some  of  which  were  used  for  farming  purposes  connect 
ed  with  the  lands  belonging  to  the  school,  and  others  for  shops, 
play-rooms,  and  the  like,  for  the  boys.  There  was  an  extensive 
range  of  ornamental  grounds  about  the  house,  with  many  wide 
gravel  walks,  and  avenues  of  trees,  arid  summer-houses.  Here  and 
there,  also,  swings,  and  gymnastic  poles,  and  other  such  contriv 
ances  were  set  up  in  places  convenient  for  the  boys  to  use  them. 
One  of  the  swings  was  in  a  very  pretty  little  grove  of  trees. 


14  THE    COURT. 


The  mountains.  Rattlesnakes  in  the  woods.  The  way  to  the  Hudson  River. 

The  valley  opened  toward  the  east,  so  that  it  took  the  morning 
sun  in  a  very  cheerful  and  pleasant  manner,  and  this  was  perhaps 
the  reason  why  it  had  received  the  name  of  Morningdale. 

On  the  northern  side  of  the  grounds  connected  with  the  school 
there  extended  a  region  of  rocky  and  mountainous  land  covered 
with  forests.  There  were  roads  leading  in  various  directions  in 
among  these  mountains,  but  where  they  led  to  the  boys  did  not 
know,  for  they  had  never  been  to  the  end  of  them. 

There  were  also  a  great  many  wild  and  solitary  paths  through 
this  wilderness,  though  the  boys  seldom  went  far  into  them,  and 
they  never  went  there  alone.  There  was  a  tradition  that  in  for 
mer  years  rattlesnakes  had  lived  there,  in  the  holes  among  the 
rocks,  and  although  none  of  the  boys  had  ever  seen  one  of  these 
reptiles,  and  though  -they  generally,  when  talking  on  the  subject 
with  new  comers,  stoutly  denied  that  there  were  any  there,  still 
they  could  not  play  in  those  woods  with  any  comfort,  and  they, 
therefore,  seldom  went  there  except  in  large  companies.  They  al 
ways  went  well  armed  with  clubs,  too,  and  they  walked  very  wa 
rily,  and -at  every  rustling  that  they  heard  they  stopped  to  listen, 
thinking  that  it  might  be  the  sound  of  a  rattle. 

As  the  valley  opened  toward  the  east,  the  head  of  it  was  toward 
the  west,  that  is,  toward  the  North  River,  which  was  distant  only 
a  few  miles  from  Morningdale.  There  was  a  good  road  in  that  di 
rection,  which  led,  winding  up  the  valley,  to  a  beautiful  country  on 
the  height  of  the  land,  and  thence  down  to  the  river.  The  boys 
used  often  to  go  by  that  road  when  they  wished  to  go  to  New 
York  by  the  steam-boat.  The  distance  to  the  steam-boat  landing 


THE    COURT.  15 


Three  ways  of  going  to  New  York.  Dr.  Mather.  The  brook. 

was  about  eight  miles,  and  the  road  was  a  very  pleasant  one  to 
travel. 

There  was  also  another  broad  and  pretty  road,  which  led,  in  a 
winding  way,  down  from  Morningdale  to  the  valley  of  the  Bronx, 
and  thence  to  the  rail-road  station.  Thus  the  boys  had  two  ways 
of  going  to  New  York,  one  by  the  steam-boat  on  the  North  River, 
and  the  other  by  the  Harlem  Rail-road.  Indeed,  there  were  three 
ways  ;  for  they  might,  if  they  chose,  when  they  reached  the  steam 
boat  landing  on  the  river,  proceed  by  the  Hudson  River  Rail-road. 
There  was  a  station  on  that  road  very  near  the  landing. 

Dr.  Mather,  who  was  the  proprietor  and  principal  of  the  Morn 
ingdale  school,  kept  several  horses  and  carriages  for  the  use  of  his 
family  and  of  the  boys.  There  was  one  horse  that  was  kept  har 
nessed  all  the  time  into  a  light  wagon  for  doing  errands.  This 
horse  and  wagon  were  sent  almost  every  day  to  the  station  in  or 
der  to  bring  up  boxes  and  parcels,  which  came  there  by  the  trains, 
for  Dr.  Mather  or  for  the  boys.  On  his  way  back  from  the  sta 
tion,  the  boy  who  drove  this  wagon  stopped  at  the  post-office  in 
the  village  for  the  letters.  He  had  a  leather  bag  to  bring  them  in. 

There  was  a  very  pretty  brook  running  through  the  Morning- 
dale  valley,  and  for  a  considerable  distance  this  brook  flowed 
through  the  grounds  of  the  school.  In  one  place  on  this  brook 
there  was  a  dam,  which  Dr.  Mather  had  caused  to  be  built  in  or 
der  to  make  a  pond  for  the  boys.  This  pond  answered  several 
very  important  purposes.  The  boys  kept  ducks  and  geese  upon 
it,  and  sometimes  other  aquatic  birds.  They  also  fished  in  it, 
though  the  larger  boys  generally  preferred  to  fish  in  the  Bronx. 


16  THE    COURT. 


Swimming,  boating,  and  skating.  The  rule  about  pocket-money. 

They  sometimes  bathed  in  it,  especially  in  the  early  part  of  the 
summer,  for  the  water  became  warm  enough  for  bathing  in  the 
pond  some  time  before  it  did  in  the  river.  They  sailed  boats  and 
rafts  in  it  in  all  seasons  of  the  year,  except  in  the  winter,  and  then 
they  derived  a  still  greater  degree  of  pleasure  from  it  by  skating 
on  the  ice. 

This  pond  was  very  pretty,  as  well  as  very  convenient  for  the 
boys'  uses.  It  was  of  a  winding  and  irregular  form,  and  the  banks 
of  it  were  very  picturesque.  The  lines  of  the  shore  were  varied 
with  many  capes,  bays,  and  projecting  headlands,  and  there  were 
wharves  and  harbors  here  and  there  which  the  bays  had  formed. 
The  banks  were  shaded,  too,  very  prettily  with  trees  and  shrub 
beries,  and  there  were  a  great  many  pleasant  walks  along  the  mar 
gin  of  them. 

There  was  one  custom  established  at  this  school,  which  it  is 
necessary  to  explain,  in  order  that  the  reports  of  the  trials  con 
tained  in  this  volume  may  be  better  understood,  and  that  was  in 
relation  to  the  boys'  pocket-money.  The  rule  was  that  every  boy 
was  to  receive  from  his  father,  during  the  time  that  he  remained 
in  the  school,  twenty-five  cents  per  week,  neither  more  nor  less, 
for  pocket-money.  The  sons  of  the  richest  men  were  not  allowed 
to  have  any  more,  nor  were  those  whose  parents  were  not  so  rich 
to  have  any  less.  This  was  an  express  stipulation  which  Dr.  Ma 
ther  made  with  every  parent  when  his  son  was  admitted  to  the 
school.  If  the  parent  would  not  consent  to  this,  Dr.  Mather  would 
not  receive  the  boy. 

This  money,  too,  was  not  to  be  sent  to  the  boys  from  their  par- 


THE    COURT.  17 


Three  reasons  why  Dr.  Mather  made  the  rule. 


ents  at  home,  nor  to  be  brought  with  them  when  they  came,  but 
Dr.  Mather  himself  paid  it  to  them  every  week,  and  then,  at  the 
end  of  the  quarter,  charged  the  amount  in  the  bill.  Thus  he  kept 
the  question  of  pocket-money  wholly  under  his  own  control. 

There  were  various  reasons  which  led  Dr.  Mather  to  adopt  this 
plan.  In  the  first  place,  he  did  not  wish  to  have  any  of  the  boys 
in  his  school  dashing  about  among  the  others  with  their  pockets 
full  of  money,  which  their  foolish  fathers  and  mothers  had  given 
them,  and  assuming  great  airs  and  pretensions  over  the  other 
scholars  on  that  account,  as  such  boys  often  do.  He  thought  it 
much  better  that  all  the  boys  of  the  school  should  be  on  a  more 
equal  footing  in  this  respect. 

Then  he  considered  it  an  important  part  of  a  boy's  education 
that  he  should  learn  something  about  the  value  of  money,  the  dif 
ficulty  of  earning  it,  and  the  advantages  of  prudence  and  economy 
in  the  employment  of  it.  These  things  he  knew  very  well  that  a 
boy  could  never  learn  so  long  as  his  father  and  mother  kept  his 
pockets  continually  full ;  so  he  required  the  amount  that  they 
were  to  receive  to  be  limited  to  a  definite  though  sufficiently  lib 
eral  sum,  and  thus  afforded  the  boys  the  means  of  acquiring  expe 
rience  and  skill  in  the  proper  management  of  it. 

There  was  another  reason  still  for  adopting  this  plan,  which 
was,  perhaps,  not  less  important  than  the  other  two.  Dr.  Mather 
wished  to  adopt  the  system  ofjines,  as  punishments  of  petty  mis 
demeanors  and  breaches  of  order  among  the  boys,  and  he  saw  very 
plainly  that  such  a  system  could  never  be  made  to  work  equally 
or  justly  unless  the  resources  of  the  boys  in  respect  to  money 

31  B 


18  THE    COUET. 


Some  account  of  Justin.  Why  he  was  at  school. 

were  equal.  He  thought  that  if,  in  the  first  instance,  he  limited 
the  amount  that  the  boys  could  receive  from  their  parents  to  a 
moderate  sum,  equal  for. all,  and  then  could  adopt  a  system  by 
which  this  amount  could  be  increased  by  earnings  which  the  boys 
might  make,  or  by  rewards  which  they  might  receive,  and,  on  the 
other  hand,  diminished  by  fines  inflicted  for  punishment,  he  should 
be  greatly  assisted  in  the  government  and  discipline  of  the  school. 
His  calculations  in  this  respect  proved  to  be  perfectly  correct.  He 
found  that  the  system  worked  admirably  well. 

Most  of  the  boys  in  the  school  were  under  twelve  years  old. 
There  was,  however,  one  who  was  over  fifteen.  His  name  was 
Justin.  Justin  had  entered  college,  and  he  was  spending  his  first 
college  year  at  the  Morningdale  school.  This  plan  is  very  often 
adopted  when  the  boy,  or,  rather,  the  young  man  in  question,  has 
so  good  a  character  that  the  principal  of  the  school  where  he  fitted 
for  college  is  willing  to  allow  him  to  remain.  Unless  his  charac 
ter  is  very  good  indeed,  such  a  boy  remaining  in  a  school  in  the 
country  can  do  a  great  deal  of  mischief.  His  influence  over  the 
other  boys  is  very  great  on  account  of  his  superior  age  and  at 
tainments,  and  if  he  chooses  to  abuse  this  influence,  he  leads  them 
into  a  great  deal  of  evil.  Then,  moreover,  if  he  is  disposed  to  be 
disobedient  and  insubordinate,  it  is  very  difficult  to  manage  him ; 
for  the  methods  in  use  at  the  school,  being  adapted  to  an  earlier 
age,  are  not  suited  to  his  case.  Thus  it  is  in  his  power,  if  he  is 
so  disposed,  to  make  a  great  deal  of  trouble. 

But  Justin  was  an  excellent  boy.  He  was  a  very  superior 
scholar,  and  was  extremely  attentive  to  all  his  duties.  He  was 


THE    COURT.  19 


Justin's  character.  The  origin  of  the  court. 

very  sober  and  sedate  in  his  manners,  and  generally  took  very  lit 
tle  part  in  the  amusements  and  plays  of  the  younger  boys,  though 
he  was  always  ready  to  help  them  in  any  of  their  undertakings, 
whenever  his  assistance  was  required.  He  was  a  great  peace-mak 
er  too,  and  took  great  pleasure  in  settling  the  disputes  which  arose 
from  time  to  time,  especially  among  the  younger  boys. 

The  b'oys  all  had  great  confidence  in  him,  and  his  decisions  were 
almost  universally  submitted  to  without  any  question.  One  rea 
son  for  this  was  that  he  always  patiently  inquired  into  all  the  facts 
of  a  case  before  he  formed  any  opinion  in  relation  to  it.  He  wait 
ed  until  he  had  fully  heard  the  whole  story,  and  both  sides  of  it 
too,  before  he  made  up  his  mind.  Then  he  seemed  never  to  show 
any  partiality.  A  little  boy,  or  a  new-comer,  that  nobody  had  yet 
formed  any  friendship  for,  was  heard  as  patiently,  and  had  his 
rights  as  fully  considered,  in  case  of  any  contest,  as  the  oldest  and 
most  influential  and  popular  boy  in  the  school. 

It  was  this  Justin  who  was  the  judge  in  the  court  which  is  to 
be  described  in  this  volume.  The  manner  in  which  this  court 
was  established  was  somewhat  accidental.  It  happened  in  this 
way: 

One  day,  when  Justin  had  been  walking  a  little  way  in  the 
vroods,  north  of  the  school-grounds,  to  practice  a  declamation,  he 
heard,  as  he  returned  through  the  grpunds,  the  sound  of  voices 
coming  from  a  place  near  the  pond,  as  of  boys  in  altercation.  He 
immediately  turned  his  steps  toward  the  place.  It  was  at  a  place 
where  a  boy  named  Warner  was  building  a  wharf  in  his  harbor 
on  the  pond.  He  had  formed  the  margin  of  his  wharf,  both  at  the 


20  THE    COUET. 


Warner's  wharf.  The  boys  appeal  to  Justin.  Silence  in  the  court! 

front  and  at  the  sides,  by  driving  down  strong  stakes,  and  then 
setting  up  boards  edgewise  inside  of  them.  These  boards,  of 
course,  before  being  put  in,  were  sawed  to  the  proper  length. 

After  having  proceeded  so  far,  Warner  concluded  to  fill  up  the 
interior  space  of  his  wharf  with  earth,  and  then  to  pave  the  sur 
face  with  round  stones.  This  pavement  had  been  begun,  and,  be 
sides  the  stones  that  had  been  already  laid,  there  was  a  small  pile 
lying  on  the  grass  near  which  seemed  to  be  ready  to  be  laid.  There 
was  also  a  small  wheelbarrow  near.  The  wheelbarrow  was  empty, 
and  was  lying  down  upon  its  side. 

At  the  time  that  Justin  came  to  the  place,  the  work  was  entirely 
suspended,  and  all  the  boys  that  were  there  were  engaged  in  an 
eager  dispute. 

As  soon  as  Justin  came  to  the  spot,  the  boys  seemed  with  one 
accord  to  turn  to  him,  and  all  began  talking  together  to  explain 
the  case. 

"  Stop!"  said  Justin  ;  "  all  stop  !  I  can't  understand  the  case 
at  all  when  so  many  are  talking  at  once." 

So  the  boys  stopped  talking.  Immediately  afterward,  however, 
Warner  began  again,  saying, 

"I'll  tell  you  all  about  it,  Justin.  You  see,  the  boys  all 
agreed — " 

"No,"  said  a  small  boy  whom  they  called  Clicket,  and  who 
here  suddenly  interrupted  Warner,  "no,  I  did  not  agree." 

Immediately  a  dozen  voices  broke  in  again,  all  clamorous  to  ex 
plain  the  case. 

"Hush!"  said  Justin.     " Silence!  silence  in  the  court!     I'll  tell 


THE   COURT.  21 


Choosing  a  jury.  Jurors  should  be  unbiased.  Murray  and  Jones. 

you  what  we  will  do.  We  will  have  a  court,  and  try  the  case 
regularly.  I'll  be  the  judge." 

"  Agreed  !"  said  all  the  boys  ;  "  agreed !  agreed  !" 

"  I'll  be  the  judge,"  continued  Justin ;  "  and  then  we  shall 
want  a  jury  besides." 

Here  there  was  another  burst  of  vociferation  from  the  boys,  all 
of  them  wanting  to  be  jurors. 

"I'll  be  jury!"  "Let  me  be  jury !"  "Me!"  "Me!"  "Joe 
and  I  will  be  jury."  These  and  similar  cries  were  uttered  so  ea 
gerly  by  the  boys  as  to  produce  a  scene  of  utter  confusion. 

"  Hush !"  said  Justin.  "  Silence!  None  of  you  can  be  jury. 
We  must  have  a  jury  that  don't  know  any  thing  about  the  case." 

"Then  how  can  they  decide?"  said  one  of  the  boys. 

"  They  will  learn  about  it  by  hearing  the  witnesses,"  said  Jus 
tin.  "In  courts  they  always  take  pains  to  get  a  jury  that  have 
not  made  up  their  minds  about  the  case  beforehand.  It  is  a  great 
deal  better  that  they  should  not  know  any  thing  about  it  at  all 
except  what  they  learn  from  the  witnesses." 

Here  there  was  another  outcry  from  the  boys,  all  clamoring  to 
be  witnesses  ;  but  Justin  succeeded  .before  long  in  quieting  them 
again. 

"  You  must  not  talk  at  all,"  said  he,  "but  keep  perfectly  quiet, 
or  else  we  can't  have  any  court.  I  shall  tell  you  exactly  what  to 
do." 

At  a  little  distance  from  the  place  where  this  scene  occurred 
there  were  two  boys  in  a  boat.  Their  names  were  Murray  and 
Jones.  There  was  just  a  glimpse  of  them  to  be  seen  through 


22  THE    COURT. 


Thejury  empaneled.  Warner  is  plaintiff.  Clicket  defendant 

the  trees,  over  an  intervening  point  of  land.  Justin  immediately 
called  to  these  boys  to  come  that  way;  and  as  boys  seldom  failed 
to  come  when  Justin  called  them,  Murray  and  Jones  began  at 
once  to  paddle  their  boat  in  that  direction. 

When  the  boat  came  near,  Justin  told  the  boys  that  he  wanted 
them  to  be  jury. 

"  There  is  a  case  to  be  tried,"  said  he. 

"Very  well,"  said  Murray ;  "we'll  be  jury.    What's  the  case  ?" 

"Sit  down  where  you  are,  in  the  boat,"  said  Justin,  "and 
listen." 

So  Murray  and  Jones  sat  down  together  on  one  of  the  thwarts 
of  the  boat,  and  assumed  an  attitude  of  great  attention. 

"  Now,"  said  Justin,  "  which  of  you  boys  is  it  that  claims  any 
thing  of  any  other  boy  ?" 

"I  do,"  said  Warner. 

"Then  you  are  plaintiff,"  said  Justin.  "And  who  is  it  that 
you  claim  something  of?" 

"Of  Clicket,  there,"  said  Warner,  pointing  to  Clicket. 

"Then  Clicket  is  defendant,"  said  Justin.  "Nobody  must 
speak  except  those  that  I  call  upon.  I'm  judge,  and  it  belongs  to 
me  to  regulate  the  proceedings. 

"  And  now,"  continued  Justin,  "  it  is  the  plaintiff's  turn  to  tell 
his  story  first,  and  the  jury  must  listen.  But  then,  gentlemen  of 
the  jury,"  he  added,  turning  to  Murray  and  Jones  in  the  boat, 
"  you  must  not  absolutely  believe  the  plaintiff's  account  of  the 
affair  till  you  hear  what  the  defendant  has  got  to  say." 

"  Then  I  don't  see  what  good  it  will  do  for  me  to  tell  the  story," 


THE    COURT. 


The  jury  should  not  absolutely  believe  one  side  till  they  have  heard  the  other. 

said  Warner,  somewhat  sullenly,  "if  they  are  not  going  to  Lelieve 
me." 

"I  said  they  must  not  believe  you  absolutely,"  replied  Justin, 
good-naturedly.  "  That  is,  they  must  not  consider  your  account 
of  the  matter  conclusive  until  they  hear  the  other  side.  Don't 
you  think  it  is  a  good  rule  to  hear  both  sides  of  a  story  before  we 
make  up  our  minds  about  it  ?" 

"Why,  yes,"  replied  Warner. 

"  Then  you  ought  to  be  willing  that  the  rule  should  be  applied 
in  your  case.  So  go  on  and  tell  your  story,  and  then  we  will  hear 
what  Clicket  has  to  say  on  his  side." 

"Well,"  said  Warner,  "I  made  Clicket  a  whistle,  and  he  was 
to  wheel  me  a  load  of  stones  in  that  wheelbarrow  for  my  pave 
ment,  and  now  he  won't  do  it." 

"  I  did  not  agree  to  do  it,"  said  Clicket,  interrupting. 

"  Stop!"  said  Justin.  "It  is  not  your  turn  yet.  You  shall 
tell  your  story  by-and-by,  when  Warner  has  got  through." 

"  Well,"  said  Warner,  "  the  case  is  just  this.  I  agreed  to 
make  the  boys  some  whistles  if  they  would  bring  me  some  stones. 
Every  boy  was  to  have  a  whistle  who  would  bring  me  one  wheel 
barrow  load  of  stones.  Well,  the  boys  all  agreed  to  it — " 

"  I  did  not  agree  to  it,"  said  Clicket. 

"Hush!"  said  Justin.     "Wait  till  your  turn  comes." 

"  So  I  cut  down  some  branches  from  the  willow-tree  there,"  con 
tinued  Warner,  "  and  made  the  whistles.  I  made  four,  and  Click 
et  had  one  of  them.  All  the  rest  of  the  boys  have  brought  me 
their  loads  of  stones,  but  Clicket  won't  bring  me  his." 


24  THE    COURT. 


The  trial  proceeds.  Clicket  calls  a  witness. 

"  That  is  all  that  you  have  to  say,  is  it  ?"  said  Justin. 

"  Yes,'1  said  Warner. 

"  Now,  then,  Clicket,  it  is  your  turn,"  said  Justin,  turning  to 
Clicket.  "  What  have  you  to  say  ?" 

"Why,  I  did  not  agree  to  any  such  thing,"  said  Clicket.  "  He 
made  me  a  whistle,  and  I  took  it,  but  I  did  not  agree  to  bring  him 
any  stones  for  it ;  I  can  prove  that  I  did  not  agree  to  bring  any 
stones." 

"Very  well,"  said  Justin,  "prove  it.     Who  is  your  witness?" 

Clicket  appealed  to  a  boy  named  Moses  to  confirm  what  he  said, 
and  so  Moses  was  called  upon  to  tell  what  he  knew  about  the  case. 
Moses  came  forward  and  spoke  as  follows : 

"  I  was  here  when  it  began.  WTarner  said  that  he  wanted  some 
stones  to  finish  his  pavement,  and  he  said  that  if  any  of  the  boys 
would  go  up  the  brook,  to  the  place  where  such  stones  were  plenty, 
and  bring  him  six  apiece,  he  would  make  each  of  them  a  whistle. 
Two  or  three  of  them  said  they  would,  but  Clicket  did  not  say 
any  thing.  I  listened  particularly.  However,  Warner  made  him 
a  whistle,  and  he  took  it,  but  he  did  not  agree  to  bring  him  any 
stones  for  it." 

"  Then  what  business  had  he  to  take  the  whistle  ?"  demanded 
Warner. 

"  That's  for  the  jury-boys  to  consider,"  said  Justin.  "All  we 
have  to  do  now  is  to  get  the  facts  of  the  case  all  out.  Do  you 
think  it  was  so,  as  Moses  says,  that  Clicket  did  not  positively 
agree,  in  so  many  words,  to  bring  the  stones  ?" 

"  I  don't  know  that  he  agreed  to  it  in  so  many  words,"  said 


THE   COURT.  25 


What  Clicket  did  with  the  whistle.  Duties  of  the  jury. 

Warner;  "but  he  took  the  whistle  and  blew  on  it  a  long  while, 
and  he  has  got  it  in  his  pocket  now." 

Here  Clicket  pulled  the  whistle  out  from  his  pocket,  and  threw 
it  toward  Warner,  saying,  in  a  testy  tone, 

"  Here !  take  your  whistle !" 

The  whistle  fell  upon  the  ground,  but  nobody  picked  it  up,  and 
so  it  lay  there  neglected. 

"  Well,  now,  you  jury-boys,"  said  Justin,  turning  to  the  jury  in 
the  boat,  "  the  point  is  this.  You  see,  it  is  the  duty  of  the  judge 
to  explain  what  the  point  is  in  each  case.  The  point  is  this : 
whether  Clicket,  by  taking  the  whistle,  and  without  saying  any 
thing  about  the  agreement,  bound  himself  to  bring  the  stones  ;  or, 
had  he  a  right  to  consider  it  as  a  gift  to  him.  You  must  not  con 
sider  this  case  alone,  but  must  take  it  in  connection  with  other 
cases  on  the  same  principle.  If  a  person  takes  any  thing  of  value 
from  another  person  with  a  certain  understanding,  does  the  sim 
ple  act  of  taking  it  on  that  understanding  bind  him  to  it,  without 
any  other  agreement  ?" 

"/think,"  said  Murray,  one  of  the  jury-boys,  beginning  to  ex 
press  his  opinion. 

"  Stop!"  said  Justin,  interrupting  him.  "You  must  not  give 
your  verdict  yet.  Wait  till  you  have  heard  all  that  the  judge  has 
to  say.  There  are  a  great  many  cases  like  this  continually  hap 
pening  among  men.  For  instance,  suppose  a  man  comes  down  to 
the  bank  of  a  river  where  there  is  a  ferry.  The  ferryman  is  in  his 
boat,  and  asks  the  man  if  he  wishes  to  cross  the  ferry.  The  man 
says  Yes,  he  should  like  to  cross  the  ferry  well  enough.  *  Very 


26  THE    COURT. 


Cases  of  implied  agreements. 


well,'  says  the  ferryman  :  'jump  into  the  boat,  and  I  will  take  you 
over.'  So  the  man  gets  into  the  boat,  and  the  ferryman  rows  him 
over.  When  they  get  to  the  shore,  the  ferryman  calls  for  his  pay; 
but  the  man  says  that  he  did  not  promise  to  pay  him  any  thing. 
'  You  asked  me  to  get  into  your  boat,'  says  he,  '  and  you  said  that 
you  would  row  me  over ;  but  I  did  not  ask  you  to  do  it,  and  I  did 
not  promise  to  pay  you  any  thing.'  Now  the  question  is,  Wheth 
er,  in  such  a  case  as  that,  the  man  is  bound  to  pay." 

"I  should  think  he  would  be  a  mean  fellow  if  he  would  not," 
said  one  of  the  jury. 

"  Very  likely,"  said  Justin  ;  "  but  that  is  not  exactly  the  ques 
tion.  It  might  be  mean  in  a  man  to  refuse  to  do,  in  some  cases, 
what,  after  all,  he  was  not  really  bound  by  law  to  do.  The  ques 
tion  is,  What  this  man  would  be  bound  to  do.  Suppose  that  the 
ferryman  were  to  bring  him  into  court,  what  would  the  judge  and 
jury  decide?  Wrould  they  say  that,  as  he  did  not  make  any 
agreement  in  form  with  the  ferryman  to  be  ferried  over  the  river, 
he  could  do  as  he  pleased  about  paying  ?  Or  would  they  say  that 
his  getting  into  the  boat  and  going  over  was  agreement  enough — 
that  is,  that  his  taking  a  passage  on  the  understanding  that  he  was 
to  pay  was  in  fact  an  agreement  on  his  part  that  he  would  pay  ? 

"  Or  suppose,"  added  Justin,  in  continuation  of  his  charge  to 
the  jury,  "  suppose  that  a  milkman,  in  going  his  rounds,  should 
begin  by  mistake  to  leave  his  milk  at  the  wrong  house,  and  sup 
pose  that  the  woman  who  lived  there  should  tell  her  girl  not  to 
say  a  word,  but  to  take  the  milk  every  morning.  '  Let  him  leave 
it  here,'  says  she,  '  as  long  as  he  pleases.  I  have  not  ordered  it, 


THE    COURT.  27 


The  jury  go  away  in  the  boat  to  consider  the  case. 


and  so  I  shall  not  have  any  thing  to  pay.'  She  lets  him  go  on 
so  till  the  end  of  the  quarter,  and  then,  when  he  brings  in  his  bill, 
she  says,  '  I  don't  owe  you  any  thing  for  this  milk,  for  I  did  not 
agree  to  take  it.'  The  question  is  what  the  judge  and  jury  ought 
to  decide." 

"  I  think  they  would  decide,"  said  one  of  the  jury,  "  that  she 
ought  to  have  told  the  milkman  before." 

"  Yes  ;  but  now  it  is  too  late  for  that,"  replied  Justin.  "  The 
milk  has  been  delivered,  and  is  all  drunk  up,  and  now  the  ques 
tion  is  whether  the  woman  would  be  obliged  to  pay  for  it.  I 
know  how  it  would  be,  for  I  have  read  of  such  cases  in  the  law- 
books,  but  I  shall  leave  it  for  the  jury  to  consider  what  they  think 
the  decision  ought  to  be.  So  you  can  consider  and  decide.  If 
you  think  that  when  a  person  takes  a  thing  of  another  with  the 
understanding  that  he  is  to  pay  for  it,  the  act  of  taking  it  is  in 
itself  to  be  considered  as  an  agreement  on  his  part  that  he  will 
pay  for  it,  then  you  must  decide  in  favor  of  Warner,  for  Clicket 
took  the  whistle  with  the  understanding  that  he  was  to  bring  a 
wheelbarrow  load  of  stones  to  pay  for  it.  But  if  you  think,  on 
the  other  hand,  that  a  person  is  never  bound  to  pay  for  an  article 
that  he  receives,  unless  he  has  in  so  many  words  agreed  that  he 
will  pay  for  it,  then  you  must  decide  in  favor  of  Clicket,  for  it  is 
proved  that  he  did  not  say,  in  so  many  Avords,  that  he  would  bring 
the  stones. 

"And  now,"  continued  Justin,  "you  must  go  off  in  your  boat 
a  little  way,  and  talk  about  it,  and  see  if  you  both  think  alike. 
If  you  do,  you  must  then  come  back  and  tell  us  what  you  think. 


28  THE   COURT. 


The  verdict.  Clicket  is  not  satisfied. 

If  you  do  not,  you  must  come  back  and  tell  us  that  you  do  not 
agree." 

So  Murray  and  Jones  paddled  off  up  the  pond  a  little  way,  un 
til  they  were  out  of  hearing,  and  there  held  their  consultation. 
Pretty  soon  they  came  back,  and  Murray  said  that  they  were 
agreed. 

"  We  think,"  said  he,  "  that  Clicket  ought  to  bring  two  wheel 
barrow  loads  of  stones ;  one  to  pay  for  the  whistle,  and  the  other 
for  damages,  on  account  of  having  made  Warner  so  much  trouble 
by  refusing  to  bring  the  stones  at  first." 

Clicket  seemed  very  little  disposed  to  submit  to  this  decision. 
He  said  he  was  willing  to  bring  one  wheelbarrow  load,  if  the  boys 
said  so,  but  he  did  not  think  it  was  fair  that  he  should  have  to 
bring  two. 

"  I  would,"  said  Justin.  "  You  can  do  it  very  easily,  and  it 
is  always  best  to  submit  to  the  laws.  Indeed,  if  I  were  you,  I 
don't  know  but  that  I  should  bring  three  loads,  or,  at  any  rate,  I 
would  put  an  extra  stone  in  each  of  the  two,  so  as  to  give  first- 
rate  measure." 

Clicket,  finding  thus  that  every  body  was  against  him,  concluded 
to  submit,  though  he  did  it  rather  ungraciously.  He  brought  the 
two  loads  of  stones,  and,  just  as  he  came  with  the  last  one,  the 
bell  rang  for  supper,  and  the  boys  all  went  up  toward  the  house. 
Justin  lingered  behind,  so  as  to  talk  to  Clicket  on  the  way. 

"  Then  you  don't  think  the  decision  was  fair,  do  you,  Clicket  ?" 
said  he. 

"No,"  answered  Clicket,  "  I  don't  think  it  was  fair  at  all." 


30  THE   COUET. 

Justin's  illustration  of  the  ticket-office. 

"  Then  you  don't  think,"  said  Justin,  "  that  a  person  is  obliged 
to  pay  for  what  he  takes,  unless  he  agrees  to  in  so  many  words  ?" 

"  No,"  said  Clicket,  "  I  don't."      , 

"  Did  you  ever  go  to  the  Museum  in  New  York  ?"  said  Justin. 

"  Yes,"  replied  Clicket,  "  and  a  nice  time  I  had  there." 

" How  much  did  you  pay?"  asked  Justin. 

"I  paid  a  shilling,"  said  Clicket.  "It  is  twenty-five  cents — 
boys  like  me  half  price." 

"  Well  now,  Clicket,"  continued  Justin,  "  suppose  you  were  to 
go  to  the  Museum  again,  and,  when  you  came  to  the  door  with 
your  shilling  in  your  hand,  you  should  put  the  shilling  down  on 
the  little  shelf  by  the  window,  and  the  man  should  take  it  and 
put  it  in  the  drawer,  and  then  you  should  ask  him'  for  a  ticket. 
The  man  would  say,  '  Give  me  a  shilling,  and  I  will  give  you  a 
ticket;'  and  you  would  say  to  him,  'I  just  gave  you  a  shilling.' 
Then  he  would  say,  '  You  did  not  give  me  the  shilling  for  a  ticket, 
you  gave  it  to  me  for  nothing.'  Then  you  would  say,  '  Xo,  I 
meant  that  shilling  to  pay  for  a  ticket.'  Then  the  man  would 
say,  '  I  don't  care  what  you  meant ;  you  did1  not  say  it^vas  for  a 
ticket.  You  gave  me  the  money  without  saying  a  word,  and  I 
took  it  and  put  it  in  the  drawer.  I  did  nofc  agree  to  give  you 
any  thing  for  it,  and  so  I  am  not  obliged  to  give  you  any  thing.' 
Suppose  the  man  were  to  do  so,  what  should  you  say  ?" 

"  Why,  that's  a  very  different  thing,"  said  Clicket. 

"  How  is  it  different  ?"  asked  Justin. 

"Why,  I  think  it  is  different  altogether,"  said  Clicket. 

"  I  admit  that  it  is  different,"  said  Justin,  "  in  that  it  is  about 


THE    COURT.  31 


Cases  may  be  different,  yet  their  principles  the  same. 


'the  Museum,  and  a  shilling,  and  a  ticket,  and  the  other  case  is 
about  a  wheelbarrow  and  a  load  of  stones  ;  but  the  principle  seems 
to  me  to  be  the  same,  though  some  boys  can  not  see  principles 
very  well." 

"  I  don't  know  what  you  mean  by  principles,"  said  Clicket. 

"  Why,  the  cases  are  alike  in  this,"  said  Justin :  "  Warner 
gave  you  the  whistle  just  as  you  gave  the  shilling  to  the  Museum 
man,  and  you  took  the  whistle  just  as  the  Museum  man  took  your 
shilling.  Nothing  was  said  in  either  case.  There  was  only  an 
understanding.  There  was  an  understanding  on  Warner's  part 
that  you  were  to  give  him  something  in  return  for  that  whistle, 
and  there  was  an  understanding  on  your  part  that  the  Museum 
man  was  to  "give  you  a  ticket  for  your  shilling.  There  was  not 
any  thing  but  an  understanding  in  either  case ;  so  that,  if  the  Mu 
seum  "man  was  bound  to  give  you  a  ticket,  then,  on  the  same  prin 
ciple,  you  were  bound  to  wheel  the  load  of  stones." 

As  Justin  said  those  words,  he  and  Clicket  arrived  at  the  house, 
and  they  both  Avent  in  immediately  to  supper,  so  that  nothing- 
more  was*  said  on  the  subject  at  that  time.  Some  of  the  boys, 
however,  said  afterward  that  they  thought  it  was  good  fun  to  have 
a  court,  and  tney  told  Justin  that  they  wished  that  he  would  set 
tle  all  their  disputes  in  that  way. 

Justin  accordingly  established  a  court,  and  made  rules  and  reg 
ulations,  from  time  to  time,  for  the  government  of  it,  so  that  at 
length  it  became  quite  a  well-organized  institution.  The  sessions 
of  it  were  held  in  a  summer-house.  There  was  a  seat  for  the 
judge,  with  a  place  for  the  jury  on  one  side,  and  one  for  the  wit- 


32  THE    COURT. 


The  court  in  the  summer-house. 


nesses  on  the  other.  The  plaintiff  and  defendant,  with  their  ad 
visers,  if  they  had  any,  sat  in  front.  The  boys  who  came  as  spec 
tators  sat  on  any  of  the  vacant  seats,  or  stood  outside,  and  looked 
in  through  the  openings  that  served  as  windows.  The  parties 
might  manage  their  cases  themselves,  or  they  might,  if  they  chose, 
avail  themselves  of  the  aid  of  any  of  the  elder  boys.  These  boys, 
when  thus  employed,  of  course  acted  the  part  of  counselors  at 
law. 

Reports  of  some  of  the  most  important  cases  that  were  tried  in 
this  court  are  contained  in  the  subsequent  chapters  of  this  volume. 


AN   ALIBI.  33 

Another  case.  Opening  the  court.  The  complaint. 


H. 

AN   ALIBI. 

Murray  and  Jones  against  Clicket. 

ON  the  part  of  Murray  and  Jones,  Murray  himself  appeared  to 
manage  the  case.  On  the  part  of  Clicket,  Warner  appeared. 

The  court  was  opened  on  Monday  afternoon,  about  an  hour  be 
fore  sunset.  The  bell  was  rung  at  the  door  of  the  summer-house 
five  minutes  before  the  time  of  opening  the  court,  as  a  summons 
to  the  parties  and  witnesses  to  appear.  The  judge  opened  the 
court  by  rising  in  his  place  and  commanding  silence. 

The  judge  then  called  the  case,  whereupon  the  clerk  of  the 
court  rose  and  read  a  brief  statement  of  the  complaint,  which  had 
been  prepared  for  the  purpose  by  Murray,  as  follows : 

sse  cnarae  v?ucne£  aum  navvna  vutnea  ufi 

<7  0 

.      •     .     /#  tf.J?  J 

cam/i  in/  we  matatn  wf  tne  w&ea 

/  </  V 

A,  #        /    /  fl      fl  / 

*'   a/rewiGen    av&ur  HV&    ^ctoc^  /    ana  \ 

S     / 
/?  •       //?       /?       /?     /?  /  /?  /  /     /?  •/?/ 

ctat'm  fna*  vie  47i(}(6'tu>  we  freeMMd-ea  r&  vtwfa 

ff 

cwn'et'.  (--i/tanea, 

</ 


31 


34  AN    ALIBI. 

Paneling  the  jury.  Murray,  for  the  plaintiff,  calls  a  witness. 

The  Judge.  Well,  Clicket,  and  what  do  you  say  to  this  charge? 

Clicket.   I  say  I  did  not  do  it. 

The  Judge.  Then  I  will  appoint  a  jury  to  try  the  case.  I  ap 
point  Moses  and  Clark.  Come  forward,  Moses  and  Clark,  and 
take  your  places  on  the  jury-bench. 

The  two  jurors  thus  summoned  came  forward. 

The  Judge  (addressing  the  jury).  Have  you  heard  any  thing 
of  this  case,  so  as  to  have  made  up  your  minds  whether  Clicket 
did  really  set  fire  to  the  camp  or  not  ? 

Moses.  I  have  heard  some  of  the  boys  talking  about  it,  but  I 
have  not  made  up  my  mind. 

Clark.  It  is  the  same  with  me. 

The  Judge  (addressing  Warner).  Have  you  any  objection, 
Warner,  on  the  part  of  Clicket,  to  having  these  boys  for  the 


Warner  (looking  at  the  boys).  No,  we  have  no  objection. 

The  Judge.  Then  we  will  proceed.  It  is  your  turn  first,  Mur 
ray.  You  must  bring  forward  witnesses  to  prove,  if  you  can,  that 
Clicket  burned  your  camp.  Then,  afterward,  we  will  hear  what 
Warner  has  to  offer  in  Clicket's  defense. 

Murray.  The  first  witness  that  I  have  to  call  is  Orville.  I 
want  him  to  tell  about  our  camp. 

Here  the  judge  called  for  Orville.  He  was  outside  the  sum 
mer-house,  but  on  hearing  himself  called,  he  came  in  and  took  his 
place  on  the  witness's  bench. 

Murray.  I  want  you  to  tell  the  judge  and  the  jury  about  my 
camp. 


AN   ALIBI.  35 

Orville  describes  the  camp  in  the  woods. 

Orville.  About  its  "being  burned  up  ?  I  don't  know  any  thing 
about  that. 

Murray.  No ;  I  mean  about  the  building  of  it,  where  it  was, 
and  what  a  good  camp  it  was. 

Orville  (turning  to  the  jury).  Well,  you  see,  Murray  and  Jones 
built  a  camp  out  in  the  edge  of  the  woods.  I  helped  them  build 
it.  It  was  a  first-rate  camp.  It  was  in  a  very  good  place  too, 
just  in  the  margin  of  the  wood.  We  did  not  go  very  far  into  the 
woods,  for  fear  that  there  might  be  some  snakes  there.  So  we 
chose  a  pretty  place  just  beyond  the  gate,  and  a  little  way  from 
the  brook,  and  built  the  camp  there. 

Murray.  Describe  to  the  judge  how  the  camp  was  built,  and 
what  sort  of  a  camp  it  was. 

Orville.  We  built  it  of  poles  and  bushes.  We  first  cut  down 
three  small  trees  to  make  three  poles  of.  Then  we  trimmed  off 
the  branches  of  the  trees  and  laid  them  aside.  Then  we  made 
small  holes  in  the  ground  to  put  the  ends  of  the  poles  in,  and  we 
let  the  tops  of  them  come  together  in  the  middle,  so  as  to  make 
the  frame  of  the  roof.  The  frame  was  three-sided.  There  were 
crotches  in  the  tops  of  the  poles  where  they  came  together,  and 
we  hooked  these  crotches  into  each  other,  and  that  fastened  the 
tops  of  the  poles  together.  Then  we  took  the  branches  that  we 
had  trimmed  off  from  the  tree,  and  set  them  up  against  the  poles, 
on  the  two  back  sides,  and  on  a  part  of  the  front  side.  We  left 
a  part  of  the  front  side  open  for  a  door. 

Murray.  Did  it  make  a  good  camp  ? 

Orville.  Yes,  it  was  the  best  camp  that  I  ever  saw. 


36  AN   ALIBI. 

Contents  of  the  camp.  Another  witness.  The  motive. 

Murray.  What  did  we  have  in  the  camp  ? 

Orville.  You  had  a  fire-place  made  of  stones,  with  an  opening 
above  in  the  roof  for  the  smoke  to  go  out.  You  had  a  basket  of 
apples  with  two  plates  in  it,  and  also  some  potatoes ;  but  the  po 
tatoes  were  in  a  hole,  in  the  back  side  of  the  camp. 

The  Judge.  Why  were  they  covered  up  in  that  way  ? 

Orville.  Why,  the  boys  thought  that  they  would  keep  better 
if  they  were  covered  up,  and  there  was  not  room  enough  for  them 
in  the  basket. 

The  Judge.  Very  well.  And  now,  do  you  know  any  thing  about 
the  burning  of  the  camp  ? 

Orville.  Only  what  Murray  told  me. 

The  Judge.  You  don't  know  any  thing  of  your  own  knowledge  ? 

Orville.  No,  I  do  not. 

The  Judge.  Very  well ;  you  may  go.  Who  is  your  next  wit 
ness,  Murray  ? 

Murray.  William  Livingston. 

The  judge  called  Livingston,  and  he  came  and  took  his  place  at 
the  witnesses'  bench. 

Murray.  I  am  going  to  show  by  this  witness  what  Clicket's 
motive  was  in  burning  up  our  camp.  It  was  because  we  gave  a 
verdict  against  him  in  the  case  of  the  whistle  that  Warner  made 
for  him. 

The  Judge.  Very  well ;  proceed. 

Murray.  I  want  you  to  tell  the  jury,  Livingston,  what  Clicket 
said  about  me  and. Jones,  after  the  verdict  that  we  gave  against 
him. 


AN   ALIBI.  37 

Clicket's  threat.  Clicket  was  seen  with  a  match  going  toward  the  camp. 

Livingston.  Why,  he  said  it  was  a  shame  for  you  to  decide  that 
he  must  wheel  two  loads  of  stones,  and  that  he  meant  to  pay  you 
for  it  some  day  or  other. 

Here  Clicket  interrupted  the  proceedings  by  remarking  that  he 
only  said  that  for  fun.  The  judge,  however,  immediately  told  him 
that  he  must  not  speak  at  this  stage  of  the  trial,  but  must  wait 
until  the  time  came  for  him  to  make  his  defense. 

Murray.  I  have  nothing  more  to  ask,  Livingston. 

Warner.  But  I  wish  to  ask  him  a  question.     Can  I  do  it  now  ? 

The  Judge.  Yes,  now  is  the  proper  time. 

Warner.  When  Clicket  said  that,  did  he  seem  to  be  angry,  or 
did  you  think  he  was  in  fun  ? 

Livingston.  WThy,  he  laughed  when  he  said  it. 

Warner.  He  laughed,  did  he  ? 

Livingston.  Yes. 

The  Judge.  And  who  is  your  next  witness,  Murray  ? 

Murray.  Homer. 

Homer  was  called  to  the  stand,  and  gave  his  testimony  as  fol 
lows : 

Homer.  All  I  know  about  it  is  that  I  saw  Clicket  take  a  match 
box  out  of  his  room  and  put  in  his  pocket,  and  then  go  out  through 
the  back  garden  toward  the  woods,  just  before  the  camp  got  on 
fire. 

Murray.  What  time  was  it  when  you  saw  him  do  that  ? 

Homer.  It  was  about  half  past  one. 

The  Judge.  How  do  you  happen  to  know  just  what  time  of 
day  it  was  ? 


38  AN    ALIBI. 

Clicket's  secret.  Homer's  raspberrying  party. 

Homer.  Why  it  was  just  after  dinner,  and  we  always  get 
through  dinner  about  half  past  one  o'clock.  I  went  up  into  my 
room  to  get  a  little  basket  that  I  keep  to  go  a  raspberrying  with. 
Some  of  the  boys  and  I  had  formed  a  party  to  go  a  raspberrying. 
When  I  was  going  into  my  room  I  saw  that  Clicket  was  in  his 
room,  for  his  door  was  open.  I  looked  in  and  asked  him  what  he 
was  doing.  He  told  me  that  he  was  getting  some  matches.  I  saw, 
too,  that  he  was  taking  some  matches  from  a  box  on  the  mantle- 
piece  and  putting  them  in  a  little  tin  box  to  carry  in  his  pocket. 

The  Judge.  Did  you  say  any  thing  to  him  about  the  matches  ? 

Homer.  I  asked  him  what  he  was  going  to  do  with  them,  and 
he  said  it  was  a  secret. 

Murray.  And  you  saw  him  run  off  through  the  back  garden 
with  them,  toward  the  gate  that  leads  to  where  the  camp  was  ? 

Homer.  Yes.  He  took  the  matches  and  ran  down  stairs.  I 
looked  out  the  window  to  see  where  he  was  going  with  them,  and 
I  saw  him  running  through  the  garden. 

Murray.  And  is  that  all  that  you  know  ? 

Homer.  That  is  all  I  know  about  Clicket.  But  afterward  I 
saw  the  camp  on  fire. 

Murray.  Well,  tell  the  jury  about  that. 

Homer.  As  soon  as  I  had  got  my  basket,  I  went  down  by  the 
back  shop  to  the  place  where  I  had  agreed  to  meet  the  boys  that 
were  going  on  the  raspberry  party.  We  all  went  together  through 
the  garden,  and  out  through  the  back  gate,  and  as  soon  as  we  came 
in  sight  of  the  camp  we  saw  that  it  was  on  fire. 

The  Judge.  Well,  go  on.     Tell  us  all  that  happened. 


AN    ALIBI.  39 

The  scene  before  the  burning  camp.  The  defense  is  an  alibi. 

Homer.  As  soon  as  we  saw  that  the  camp  was  on  fire,  we  ran 
toward  it  as  fast  as  we  could  to  see  if  we  could  not  put  it  out ; 
but  we  found  it  was  too  late.  Just  as  we  got  there,  I  saw  a  toy 
running  off  through  the  woods  down  the  valley.  I  thought  it  was 
Clicket. 

The  Judge.  What  made  you  think  it  was  Clicket  ? 

Homer.-  Why,  I  saw  him  come  that  way,  and  so  I  supposed  that 
he  had  been  setting  the  camp  on  fire,  and  was  now  running  off. 

Murray,  Did  the  boy  that  you  saw  look  like  Clicket  ? 

Homer.  I  could  not  see  very  well.  I  only  got  a  glimpse  of 
him  through  the  trees.  I  was  in  a  hurry,  for  I  knew  that  there 
was  a  basket,  filled  with  apples  and  other  things,  in  there,  and  I 
wanted  to  get  it  out ;  so  I  ran  in,  and  seized  the  basket,  and 
brought  it  out,  while  the  other  boys  waited  outside.*  That's  all 
I  know,  only  I  staid  there  until  the  camp  was  all  burned  down, 
and  Ogden  and  some  other  boys  came. 

The  Judge.  Very  well.  You  may  go.  Have  you  any  more 
witnesses,  Murray  ? 

Murray.  JS"o,  I  think  that  that's  enough  to  prove  that  Clicket 
set  the  camp  on  fire. 

The  Judge.  Now,  then,  Warner,  it  is  your  turn.  What  wit 
nesses  have  you  got  on  Clicket's  side  ? 

Warner.  I  am  going  to  prove  an  alibi,  f     I  have  got  a  witness 

*  See  Frontispiece. 

t  The  word  alibi  means  elsewhere.  When  a  person  is  charged  with  any  crime,  and 
he  shows  that  he  could  not  have  been  the  one  that  perpetrated  the  act  by  proving 
that  he  was  in  another  place  at  the  time,  it  is  called  proving  an  alibi. 


40  AN   ALIBI. 

Dana  is  called  as  a  witness.  Where  Clicket  was  all  the  time. 

to  prove  that  Clicket  was  not  near  the  camp  that  afternoon ;  he 
was  out  behind  the  stone  tarn  all  the  time,  with  Barker  and  Dana, 
while  the  camp  was  set  on  fire. 

The  Judge.  Very  well ;  who  is  your  .witness  ? 

Warner.  Dana. 

Dana,  on  being  called,  took  his  place  at  the  witnesses'  stand, 
and  testified  as  follows : 

Dana.  I  know  that  Clicket  did  not  set  the  camp  on  fire,  be 
cause  I  saw  him  all  the  time.  You  see,  Clicket,  and  I,  and  James 
Barker  agreed  to  go  a  fishing  that  afternoon,  and  we  agreed  to 
keep  it  a  secret,  because  we  did  not  want  any  of  the  other  boys  to 
go  with  us.  We  wanted  some  matches,  because  we  were  going 
to  build  a  little  fire  on  the  bank  of  the  brook.  So  Clicket  said  he 
would  go  up  to  his  room  and  get  some  matches,  while  I  went  to 
get  my  bait-box,  and  Barker  went  for  a  spade.  We  were  going 
to  dig  some  bait  behind  the  stone  barn.  So  I  got  my  box,  and 
waited  there,  hid  in  the  asparagus  bed,  till  he  and  Barker  came. 
Barker  came  first,  with  his  spade,  and  we  watched  there  together 
in  the  asparagus  bed  till  Clicket  came.  We  saw  him  come  out 
of  the  door,  and  through  the  gate  into  the  garden.  As  soon  as  he 
came,  we  turned  off  toward  the  stone  barn,  entirely  away  from  the 
path  that  leads  to  the  camp,  and  Clicket  did  not  go  toward  the 
camp  at  all. 

The  Judge.  How  long  did  you  stay  behind  the  barn  ? 

Dana.  We  staid  there  about  half  an  hour,  digging  bait,  and 
then  we  went  down  to  the  river,  fishing,  and  staid  there  all  the 
afternoon. 


AN    ALIBI.  41 

The  town  boy  who  saw  the  fire.  Jones  is  called. 

Warner.  Now  tell  the  jury  about  that  boy  that  you  met  on 
your  way  to  the  river. 

Dana.  We  went  down  to  the  river  by  a  back  path,  so  that  the 
boys  might  not  see  us,  and  when  we  had  gone  part  way  down  we 
saw  one  of  the  town  boys  come  running  out  of  the  woods,  all  out 
of  breath.  He  said  the  boys'  camp  was  afire.  We  asked  him 
if  he  set  it  afire,  and  he  said  No.  He  said  that  he  was  coming 
by  that  way,  and  saw  it  burning.  We  asked  him  why  he  did  not 
stop  and  put  it  out.  He  said  he  was  afraid  that  if  the  boys  saw 
him  there  they  would  think  that  he  set  it  afire,  and  so  he  ran 
away. 

The  Judge.  How  big  a  boy  was  it  ? 

Dana.  I  think  he  was  just  about  as  big  as  Clicket. 

Murray.  What  was  his  name  ? 

Dana.  I  don't  know.  I  have  seen  him  down  in  the  village, 
but  I  don't  know  what  his  name  is. 

Warner.  That's  all  I  have  to  prove  by  Dana. 

The  Judge.  Then,  Dana,  you  can  go.  Have  you  any  other 
witnesses,  Warner  ? 

Warner.  Yes ;  I  want  Jones  to  come. 

So  Jones  was  called,  and  he  came  forward  and  took  his  place 
on  the  witnesses'  stand. 

Warner.  I  want  you  to  tell  the  judge,  Jones,  about  your  build 
ing  a  fire  at  the  camp  last  Saturday. 

Jones.  Well,  I  built  a  fire  there  just  before  dinner. 

The  Judge.  Just  before  dinner  ? 

Jones.  Yes.    You  see,  we  were  going  to  roast  some  potatoes  in 


42  AN    ALIBI. 

Murray's  argument  to  the  jury. 


the  camp  that  afternoon,  and  Murray  told  me  that  I  had  better  go 
and  make  a  fire  there  before  dinner,  in  order  to  have  a  great  hot 
bed  of  coals  and  ashes  to  roast  our  potatoes  in.  So  I  did.  I 
made  the  fire  in  the  camp,  but  I  made  it  of  large  logs,  so  that  it 
would  burn  slowly,  and  not  set  the  camp  on  fire.  Besides  that, 
I  brushed  up  all  around  the  fire,  so  that  there  should  be  nothing 
to  catch  along  the  ground. 

Warner.  That  is  all.  I  have  not  got  any  more  witnesses  to 
bring. 

The  Judge.  Very  well ;  then  the  case  is  closed,  except  to  hear 
what  you  and  Murray  may  have  to  say  about  it.  Murray  is  to 
begin. 

Murray  (turning  to  the  jury).  I  think  we  have  proved  pretty 
well  that  it  must  have  been  Clicket  that  set  the  camp  on  fire.  He 
said  he  meant  to  do  something  to  pay  us  for  deciding  against  him, 
and  to  set  our  camp  on  fire  would  be  the  very  thing  that  he  would 
be  most  likely  to  do.  Then  he  went  up  to  his  room  and  got  some 
matches.  He  says  he  got  them  to  go  a  fishing  with,  and  perhaps 
he  did,  but  he  might  have  set  the  camp  on  fire  with  them  too. 
He  might  have  slipped  away  from  behind  the  barn  while  the  other 
boys  were  digging,  and  have  gone  and  set  the  camp  on  fire.  It 
was  not  very  far,  and  it  would  take  only  a  minute  to  set  the  fire 
a  going.  That's  all  I  have  to  say. 

The  Judge.  Well,  Warner,  what  have  you  to  say  in  defense  of 
Clicket  ? 

Warner.  It  seems  to  me,  gentlemen  of  the  jury,  that  it  is  not 
proved  at  all  that  Clicket  set  the  camp  on  fire.  On  the  contrary, 


AN   ALIBI.  43 

Dana's  argument.  Judge  Justin's  charge.     • 

it  is  clearly  proved  that  he  did  not.  When  he  said  that  he  meant 
to  pay  Murray  and  Jones,  he  laughed,  which  showed  that  he  was 
only  in  fun.  Then  there  is  a  good  reason  why  he  got  the  match 
es,  and  he  was  with  Dana  and  Barker  all  the  time  while  the  camp 
was  set  on  fire.  Murray  says  he  may  have  slipped  away ;  but  he 
could  not  have  slipped  away  without  Dana's  knowing  it,  and 
Dana  says  he  staid  there  with  them  digging  bait  all  the  time,  so 
that  it  could  not  have  been  he  that  set  the  camp  on  fire.  Jones 
went  out  there  and  built  a  fire  before  dinner,  and  probably  the 
camp  took  fire  in  some  way  from  that ;  or  perhaps  the  boy,  when 
he  came  along  and  saw  the  camp,  and  a  fire  burning  in  it,  pushed 
the  brands  out,  and  set  the  camp  on  fire  out  of  mischief.  That  is 
all  that  I  have  to  say. 

The  Judge  (addressing  the  jury).  Now,  boys,  you  have  to  con 
sider  the  question  and  to  decide  it.  The  question  is  just  this:  Is 
it  proved  that  Clicket  did  set  the  camp  on  fire  ?  If  you  think  that 
he  did  not,  or  if  you  think  it  is  doubtful  whether  he  did  or  not, 
then  you  must  decide  in  his  favor.  A  boy  ought  not  to  be  pun 
ished  for  a  wrong  unless  it  is  positively  proved  that  he  did  the 
wrong,  and  that  is  for  you  to  consider.  What  you  are  to  decide 
is  simply  whether  he  burned  the  camp,  and  not  what  he  is  to  do 
for  damages  in  case  he  did.  That  is  for  me  to  decide.  It  be 
longs  to  the  judge.  The  jury  have  only  to  decide  the  fact  wheth 
er  the  person  did  the  thing  or  not  that  he  is  charged  with.  Go 
out  and  consult  together,  and,  if  you  agree  in  your  verdict,  come 
in  and  tell  us  what  the  verdict  is.  If  you  do  not  agree,  then, 
when  you  come  in,  tell  us  that. 


44  AN    ALIBI. 

The  verdict  in  the  case  of  Murray  against  CHcket. 

So  the  jury  went  out  and  took  a  little  walk  together  down  one 
of  the  alleys.     Presently  they  came  back  into  the  court  again. 
The  Judge.  Have  you  agreed  upon  the  verdict  ? 
Moses.  Yes,  we  have  agreed. 
The  Judge.  What  is  the  verdict  ? 
Moses.  He  did  not  do  it. 
The  court  was  immediately  adjourned. 

After  the  trial  was  closed,  Murray  and  Jones  both  said  that 
they  were  well  satisfied  that  Clicket  did  not  set  the  camp  on  fire, 
nor  did  they  believe  that  the  town  boy  did  it.  They  concluded 
that  the  fire  must  have  taken  in  some  way  from  the  logs  which 
Jones  kindled  on  the  camp  floor  in  order  to  get  a  bed  of  hot  ashes 
to  roast  the  potatoes  in. 


THE    PHILOPENA.  45 


Mary  Mather  against  Justin.  A  judge  ought  not  to  sit  in  his  own  case. 


III. 

THE   PHILOPENA. 

JHary  Mather  against  Justin. 

As  Justin  himself  was  a  party  in  this  case,  it  was  manifestly 
unsuitable  that  he  should  preside  as  judge.  The  boys  accord 
ingly  applied  to  Warner  to  take  his  place. 

For  Mary  Mather,  Ogden  appeared  as  counsel.  Justin  appeared 
for  himself. 

The  case  was  introduced  by  reading  the  following  brief  state 
ment  : 


(2s  cuwrn  tna£    ffitdfon  caved  me  a  /inwwienaj 
umicn  ne  wdt  fo  me 


<?  </ 

The  Judge.  What  do  you  say  to  that,  Justin  ? 

Justin.  I  claim  that  she  owes  me  the  philopena. 

The  Judge.  Then  I  will  appoint  a  jury  to  try  the  case.  I 
name  Orville  and  Clicket.  Come  forward,  gentlemen  of  the  jury, 
and  take  your  places  on  the  jury's  seat. 

The  jury  came  forward  and  took  their  places,  as  required  by 
the  judge. 


46  THE    PHILOPENA. 


The  plaintiff  beginning  at  the  foundation.  The  promise. 

The  Judge.  Now,  Ogden,  bring  forward  your  witnesses  on 
Mary's  part,  and  prove  her  claim. 

Ogden.  I  shall  first  prove  the  philopena  bargain. 

The  Judge.  That's  right.  That  will  be  beginning  at  the 
foundation. 

Ogden.  My  first  witness  is  Jenny. 

The  Judge.  Come  forward,  Jenny,  and  take  your  place  there 
(pointing  to  the  witnesses'  stand),  and  answer  the  questions  that 
Ogden  will  ask  you.  Don't  be  afraid. 

Jenny.  No,  I  won't  be  afraid. 

Ogden.  Well,  Jenny,  tell  the  jury  about  Mary  and  Justin  mak 
ing  a  bargain  for  the  philopena. 

Jenny.  It  was  Monday  evening  that  they  made  it.  We  had 
some  nuts  and  apples  in  the  parlor.  Mary,  and  I,  and  my  mother 
were  in  one  corner,  sitting  together,  and  Justin  came  with  a  double 
almond  which  he  had  just  found.  He  asked  Mary  if  she  would 
have  a  philopena  with  him. 

Ogden.  What  did  Mary  say  ? 

Jenny.  At  first  she  said  no,  but  I  told  Justin  /"would  have  a 
philopena  with  him.  He  said  no,  he  would  rather  have  it  with 
Mary.  So,  finally,  Mary  agreed  to  it.  She  took  her  part  of  the 
almond,  and  Justin  kept  his,  and  they  both  ate  them  up. 

Ogden.  Is  that  all  ? 

Jenny.  Yes  ;  then  Justin  went  away. 

Ogden.  Well,  there's  one  question  more,  Jenny.  What  is  the 
rule  of  the  philopena  ?  How  is  it  generally  understood  ? 

Jenny.  Why,  whichever  of  the  two  says  Philopena  to  the  oth- 


THE    PHILOPENA.  47 


The  testimony  of  Barker.  Justin's  defense. 

er  the  next  day,  gets  a  present.  If  Justin  should  say  philopena 
to  Mary  first  the  next  morning,  then  Mary  must  make  him  a 
present;  but  if  Mary  says  it  first  to  him,  then  he  must  make  her 
a  present. 

Ogden.  Very  well ;  that's  all. 

The  Judge.   Who  is  your  next  witness,  Ogden  V 

Ogden.  Barker. 

Barker  was  then  called  into  court,  and  testified  as  follows : 

Barker.  I  heard  Mary  say  philopena  to  Justin  the  next  morn 
ing.  She  came  down  the  back  stairs,  and  came  into  the  break 
fast-room  on  tiptoe.  She  told  me  to  hush,  and  not  say  a  word, 
because  she  wanted  to  philopena  Justin  as  soon  as  he  came  in. 
So  she  hid  behind  the  door,  and  when  he  came  in,  she  philopena'd 
him.  He  did  not  know  that  she  was  there  till  he  heard  her  philo 
pena  him. 

The  Judge.  Did  he  philopena  her  at  the  same  time  V 

Barker.  No,  he  did  not  know  that  she  was  there. 

Ogden.  That  is  all,  gentlemen  of  the  jury.  I  have  proved  a 
philopena  bargain  was  made  on  Monday  night,  and  that  Mary 
philopena'd  Justin  Tuesday  morning.  And  now,  unless  he  can 
prove  that  he  philopena'd  her  before,  he  is  bound  to  make  her  a 
present. 

The  Judge.  Very  well.     Justin,  it  is  now  your  turn. 

Justin.  I  am  going  to  prove,  gentlemen  of  the  jury,  that  I  did 
philopena  her  before  she  philopena'd  me.  My  first  witness  is  Jenny. 

The  Judge.  But  Jenny  has  testified  already. 

Justin.  Yes,  she  was  Mary's  witness  then;  but  she  has  got 


48  THE    PHILOPENA. 


Jenny  is  recalled  as  witness.  The  trick.  Laughing  too  soon. 

some  more  to  tell  that  is  on  my  side.  Jenny,  I  want  you  to  tell 
the  jury  what  happened  that  morning  when  you  first  came  out  of 
your  and  Mary's  room. 

Jenny.  When  Mary  and  I  were  dressed,  and  were  ready  to  go 
down  stairs,  Mary  said  that  she  expected  that  Justin  was  watch 
ing  outside  the  door  to  philopena  her  as  soon  as  she  should  come 
out ;  and  she  told  me  she  wanted  me  to  help  her  play  him  a  joke. 
I  told  her  I  would.  She  said  then  that  she  was  going  to  slip 
away  down  the  back  stairs,  and  go  into  the  breakfast-room,  and 
watch  there  for  Justin,  in  order  to  philopena  him  first ;  and  as 
soon  as  she  was  gone,  I  was  to  open  her  door  a  little  way,  so  as 
to  make  Justin,  who  was  out  in  the  entry,  think  that  she  was 
coming  out.  He'll  say  philopena  then,  said  she,  and  will  think 
he  is  philopenaing  me ;  and  you  must  shut  the  door  again  quick, 
and  not  let  him  see  you,  so  that  he  will  really  think  it  was  me. 

The  Judge.  Well,  did  you  do  all  that? 

Jenny.  Yes,  we  did.  Mary  went  out  by  another  door,  and 
went  down  the  back  stairs.  As  soon  as  she  had  had  time  to  get 
down,  I  began  to  open  the  door  of  the  chamber  very  carefully,  as 
if  I  was  coming  out  slyly.  Immediately  Justin,  who  was  in  the 
entry,  called  out  philopena,  and  I  shut  the  door  as  quick  as  I 
could ;  so  he  thought  he  had  philopena'd  Mary,  but  he  did  not ; 
he  only  philopena'd  me. 

Here  there  was  a  general  laugh  in  the  court-room  and  among 
the  by-standers. 

Justin.  The  people  are  laughing  too  soon,  for  I  have  not  yet 
finished  my  case. 


THE    PHILOPENA.  49 


Jones's  testimony.  The  case  for  the  defense  is  closed. 

The  Judge.  Well,  then,  go  on  with  it.     Call  the  next  witness. 

Justin.  My  next  witness  is  Jones.  Come  to  the  stand,  Jones, 
and  tell  the  jury  where  you  were,  and  what  you  observed  at  the 
time  these  things  were  taking  place. 

Jones.  I  was  in  the  entry,  at  the  foot  of  the  stairs  that  morn 
ing,  just  before  breakfast,  and  I  saw  Mary  coming  along  on  tip 
toe  from  the  back  entry.  She  made  a  sign  to  me  not  to  speak, 
so  I  stood  still  and  listened. 

The  Judge.  What  did  you  listen  for  ? 

Jones.  Why,  Justin  had  gone  up  stairs  a  moment  before,  to  be 
ready  to  philopena  Mary  as  soon  as  she  should  come  out  of  her 
room  ;  so  I  listened  to  hear  what  he  would  do,  now  that  Mary  had 
come  down  stairs  the  back  way. 

Justin.  Well,  and  what  did  you  hear  ? 

Jones.  I  heard  you  say  philopena  up  in  the  upper  entry. 

Justin.  Did  you  hear  me  say  it  distinctly  ? 

Jones.  Yes,  I  heard  you  very  plain  indeed. 

Justin.  Was  Mary  near  you  at  the  time  ? 

Jones.  Yes,  she  was  creeping  along  on  tiptoe,  just  going  into 
the  breakfast-room. 

Justin.  Do  you  think  she  heard  me  say  philopena  ? 

Jones.  Yes,  I  am  sure  she  did.  She  could  not  have  helped 
hearing,  you  spoke  it  so  loud  and  plain.  Besides,  as  soon  as  she 
heard  it,  she  looked  to  me  and  laughed. 

Justin.  Very  well,  that  is  all.  I  have  no  other  witness  to 
call.  I  think  I  have  proved  that  I  philopena'd  Mary  before  she 
did  me. 

31  D 


50  THE    PHILOPENA. 


The  arguments  in  the  case  of  Mary  and  Justin. 


The  Judge.  Very  well.  Then  the  evidence  is  closed,  and  now 
the  jury  will  hear  whatever  either  of  you  have  to  say  about  the 
case,  before  they  give  their  verdict.  Ogden,  it  is  your  turn  first 
to  speak  on  Mary's  behalf. 

Ogden  (addressing  the  jury).  It  seems  to  me,  gentlemen  of  the 
jury,  that  it  is  proved  clearly  that  Mary  philopena'd  Justin  first. 
It  is  proved  that  Justin  called  out  philopena  up  stairs  when  the 
door  was  open,  supposing  that  Mary  was  there.  But  Mary  was 
not  there.  It  was  only  Jenny ;  so  that  he  said  philopena,  not  to 
Mary,  but  to  Jenny.  It  is  not  enough  for  a  person  to  say  philo 
pena  merely,  but  he  must  say  it  to  the  right  person ;  but  Justin, 
in  this  case,  said  it  to  the  wrong  person.  He  meant  to  have  said 
it  to  Mary,  for  he  thought  it  was  Mary  that  was  opening  the  door. 
But  it  was  not  Mary ;  it  was  Jenny ;  and  so  his  saying  philo 
pena  to  her  went  for  nothing,  and  her  philopenaing  him  was  the 
first.  That's  all  I  have  to  say. 

The  Judge.  Now,  Justin,  it  is  your  turn,  if  you  have  any  thing 
to  say. 

Justin.  I  think,  gentlemen  of  the  jury,  when  you  come  to  con 
sider  the  subject,  you  will  be  satisfied  that  my  saying  philopena 
up  stairs  was  really  philopenaing  Mary,  and  I  will  tell  you  why  I 
think  so.  It  is  true  that  the  person  that  was  opening  the  door 
was  Jenny,  and  not  Mary,  but  in  saying  the  word,  I  did  not  speak 
to  Jenny,  I  spoke  to  Mary ;  and  I  have  proved  that  Mary  heard 
it,  for  she  was  down  stairs  at  the  time,  very  near  Jones,  who  heard 
it  himself,  and  who  says  that  Mary,  too,  must  have  heard  it.  The 
only  thing  is,  she  was  in  a  different  place  from  what  I  supposed. 


THE    PHILOPENA.  51 


Judge  Warner's  charge  to  the  jury. 


But  that  makes  no  difference.  I  spoke  it  to  her,  and  she  heard  it, 
and  that  is  enough.  That's  all  I  have  to  say. 

The  Judge.  Gentlemen  of  the  jury,  you  must  now  consider  this 
case  and  decide  it.  There  is  no  question  about  the  facts.  Justin 
said  philopena  when  Jenny  opened  the  door.  He  thought  it  was 
Mary  that  opened  the  door,  and  so  he  directed  his  voice  toward 
her,  that  is,  Jenny*.  The  intention  of  his  mind  was  directed  to 
Mary,  who  was  down  stairs,  though  he  did  not  know  it.  Thus  he 
directed  his  voice  to  one  person,  while  the  intent  of  his  mind  was 
toward  another  person  who  was  within  his  hearing.  Now  the 
question  is,  Who  did  he  speak  to  ?  to  Jenny  or  to  Mary  ?  For  it 
is  admitted  on  all  hands  that  unless,  in  saying  philopena,  he  real 
ly  said  it  to  Mary,  it  goes  for  nothing.  That  is  the  simple  point 
you  have  to  determine.  If  you  think  he  said  philopena  to  Jenny, 
then  you  must  decide  that  he  owes  Mary  a  present.  If  you  think 
he  said  it  to  Mary,  then  you  must  decide  that  Mary  owes  him  a 
present." 

The  jury  then  retired,  and,  after  walking  about  and  talking  to 
gether  for  a  considerable  time  in  the  adjoining  alleys  of  the  gar 
den,  they  came  back  into  the  court. 

The  parties  to  the  trial  and  the  by-standers  seemed  to  listen 
with  a  great  deal  of  interest  for  their  decision. 

The  Judge.  Gentlemen  of  the  jury,  are  you  agreed  upon  your 
verdict  ? 

A  Juryman.  We  have  not  agreed.  One  of  us  thinks  that  Jus 
tin  did  philopena  her,  and  the  other  thinks  he  did  not. 

The  Judge.  And  you  can  not  possibly  agree  ? 


52  THE   PHILOPENA. 


The  jury  could  not  agree.  The  judge's  suggestion. 

The  Juror.  No,  we  can  not  agree  at  all. 

The  Judge.  Then  the  case  can  not  be  decided  by  this  trial. 
There  must  either  be  a  new  trial,  by  way  of  making  another  at 
tempt  to  settle  the  case  by  a  jury,  or  the  parties  must  compro 
mise  it. 

Ogden.  How  can  they  compromise  it  ? 

The  Judge.  There  are  two  ways  of  compromising  it.  Justin 
and  Mary  might  agree  each  to  give  the  other  a  present,  or  they 
might  give  it  up  entirely,  and  neither  of  them  have  one.  Ogden 
said  that  he  was  much  obliged  to  the  judge  for  his  suggestion,  and 
remarked  that  he  would  consult  with  his  client,  and  decide  wheth 
er  to  call  for  a  new  trial  or  submit  to  a  compromise. 

Whereupon  the  court  adjourned. 

There  was  a  great  deal  of  conversation  in  respect  to  this  case 
among  the  boys  after  the  trial,  and  opinions  were  very  much  di 
vided  in  respect  to  it.  The  case  was  finally  compromised. 


BARGAIN   NOT   CONCLUDED.  53 


Ogden's  complaint  against  "Warner. 


IV. 

BARGAIN    NOT    CONCLUDED. 

Ogden  against  Warner. 

JUDGE  JUSTIN  on  the  bench.     Each  of  the  parties  appeared  for 
himself. 

• 

The  Judge.  Which  of  you  is  plaintiff? 

Ogden.  I  am  plaintiff.     (Producing  a  paper.}     This  is  my 
statement  of  the  case. 

The  clerk  read  the  statement  of  the  case,  as  follows  : 

/-->^~    ^  •  /'•/'•        f    /*  • 

^/  ctatm    a>  fad  Sivna-  note  CM    wune 

watnet  nod  ana  ttww  net  awe  me. 


The  Judge.  Well,  Ogden,  it  is  your  turn  first.  Proceed  with 
your  proof. 

Ogden.  I  wish  first  to  prove  that  the  fishing-pole  was  mine, 
and  that  I  valued  it  very  much.  Warner  pretends  that  he  bought 
it  of  me,  but  that  is  for  him  to  prove  after  I  have  proved  that  it 
was  originally  mine. 

The  Judge.  Yes,  that  will  be  the  right  way  of  proceeding.  Yon 
must  begin  with  your  witnesses. 

Ogden.  My  first  witness  is  Clicket.  Come  forward,  Clicket, 
and  give  your  evidence. 


54  BARGAIN   NOT   CONCLUDED. 


Clicket  relates  the  purchase  of  the  fishing-rod. 


Clicket  came  forward  and  took  his  stand  at  the  place  appropri 
ated  to  the  witnesses. 

Ogden.  Well,  now,  go  on,  Clieket,  and  tell  all  about  my  getting 
this  fishing-pole  in  New  York. 

Clicket.  It  was  about  ten  days  ago  that  you  bought  it.  You 
and  I  got  leave — 

The  Judge.  Tell  the  story  to  the  jury,  Clicket,  and  not  to 
Ogden. 

Clicket  (turning  to  the  jury).  Ogden  and  I  got  leave  to  go  to 
New  York  Saturday  afternoon.  We  ran  off  immediately  after 
dinner,  so  as  to  catch  the  two  o'clock  train.  I  wanted  Ogden  to 
be  my  horse  going  down,  so  that  we  could  go  faster,  but  he  would 
not ;  however,  we  had  plenty  of  time,  for  we  got  there  ten  minutes 
before  the  train  came  along. 

The  Judge.  But,  Clicket,  this  has  nothing  to  do  with  the  fish 
ing-pole.  You  need  not  tell  the  jury  all  the  particulars  about 
your  going  to  New  York. 

Clicket.  I  am  coming  to  the  pole  pretty  soon.  When  we  got 
to  New  York,  we  got  out  at  Twenty-seventh  Street,  because  I 
wanted  to  walk  down  Broadway.  At  first  Ogden  thought  we  had 
better  go  on  to  Canal  Street,  but  at  last  he  agreed  to  get  out  at 
Twenty-seventh  Street. 

The  Judge.  But,  Clicket,  all  this  has  nothing  to  do  with  the 
fishing-pole.  You  must  come  to  the  point. 

Clicket.  I  am  coming  to  it  as  fast  as  I  can.  I  can't  come  to  it 
till  we  get  down  to  the  Battery,  because  Ogden  did  not  buy  the 
pole  till  after  we  got  there. 


BARGAIN   NOT   CONCLUDED.  55 

Clicket  wants  to  tell  a  story.  The  reed-pole. 

The  Judge.  Very  well ;  then  come  to  the  Battery  at  once,  and 
tell  us  about  buying  the  pole. 

Clicket.  I  will.  When  we  got  to  the  Battery,  we  stopped  there 
a  little  while  to  look  at  the  ships.  Pretty  soon  we  began  to  walk 
along  the  piers  on  the  North  River  side.  We  saw  some  men  load 
ing  a  ship  with  grain.  They  had  a  horse  to  hoist  the  loads  up, 
and  we  stopped  a  while  to  look  at  them.  I'll  tell  you  just  how 
they  did  it. 

The  Judge.  We  don't  want  to  know  how  they  did  it,  Clicket. 
This  is  not  the  right  time  nor  place  to  tell  these  long  stories.  We 
are  trying  a  case  now  about  a  fishing-pole.  We  want  to  hear 
about  that,  and  nothing  else.  You  must  come  right  to  the  point. 

Clicket.  Very  well.  That  I'll  do.  We  were  walking  along 
somewhere  about  pier  No.  7  or  8 ;  I  rather  think  it  was  No.  8. 

The  Judge.  It  is  of  no  consequence  what  number  it  was,  Click 
et.  Go  on  with  the  story. 

Clicket.  We  saw  a  parcel  of  reed-poles  leaning  up  against  a 
store,  where  there  were  some  sailors  standing  about.  Says  I  to 
Ogden,  Do  you  suppose  those  fishing-poles  are  for  sale?  Yes, 
says  Ogden  to  me,  of  course ;  every  thing  in  New  York  is  for  sale. 
Says  I,  They  are  grand  long  fishing-poles.  Says  he,  Yes,  and  I 
have  a  great  mind  to  buy  one.  Says  I,  If  you  should  buy  one, 
you  could  not  get  it  home.  Yes,  says  he,  I  could  take  it  with  me 
in  the  cars.  Don't  you  think  the  train  is  long  enough  ?  I  told 
him  Yes,  but  I  thought  he  had  better  buy  a  jointed  fishing-pole, 
for  that  he  could  take  to  pieces  and  shut  up  in  a  little  bundle  that 
he  could  take  under  his  arm.  But  he  said  he  did  not  like  the 


56  BARGAIN    NOT   CONCLUDED. 

End  of  the  story.  Examination  in  chief  and  cross-examination. 

jointed  fishing-poles.  The  joints,  he  said,  were  always  getting 
out  of  order.  Sometimes  they  were  so  loose  that  they  would  not 
hold  together  at  all,  and  sometimes  they  were  so  tight  that  you 
could  not  get  them  apart.  He  had  rather  have  one  good  reed-pole, 
he  said,  than  a  dozen  jointed  ones. 

The  Judge.  Never  mind  all  that  conversation.  Did  he  buy  a 
pole  ? 

Clicket.  Yes,  he  bought  a  pole,  and  gave  twenty-five  cents  for 
it,  and  we  brought  it  home. 

The  Judge.  That's  all  we  want  to  know.  Why  could  not  you 
have  told  us  that  in  the  first  instance  ? 

Clicket  (looking  puzzled).  Why,  I  came  to  it  as  quick  as  I 
could.  (Laughter  in  the  court.} 

Ogden.  That  is  all  I  have  to  prove  by  this  witness,  so  you  may 
go,  Clicket. 

Warner.  Let  him  stay  a  moment;  I  want  to  cross-examine 
him  a  little.*  You  say,  Clicket,  that  you  and  Ogden  brought  the 
pole  home.  I  should  like  to  know  how  you  brought  it  home. 

Clicket.  I'll  tell  you  how.  We  brought  it  up  into  Broadway, 
and  carried  it  about  with  us  wherever  we  went  for  a  little  while, 
but  we  found  that  was  very  troublesome,  for  the  pole  was  contin 
ually  knocking  against  the  people  that  we  met ;  and,  besides,  Og- 

*  Whenever  a  party  brings  a  witness  into  court  and  has  finished  the  examination 
of  him,  the  other  party  is  entitled  to  ask  him  questions  too,  with  a  view  of  learning 
more  particularly  about  some  of  the  facts,  or  of  ascertaining,  by  questioning  him 
closely,  whether  he  is  telling  the  truth.  This  second  questioning  by  the  party  which 
did  not  bring  the  witness  in  is  called  the  cross-examination.  The  questioning  by  the 
party  that  did  bring  the  witness  in  is  called  the  examination  in.  chief. 


58  BARGAIN   NOT    CONCLUDED. 

The  difficulty  of  carrying  a  reed-pole  on  a  rail-road  car. 

den  was  afraid  it  would  get  split.  So  we  carried  it  to  the  station, 
and  gave  it  to  a  man  there,  and  told  him  if  he  would  take  care  of 
it  for  us  till  the  seven  o'clock  train  we  would  give  him  three  cents, 
or  an  orange,  whichever  he  pleased.  He  said  he  had  rather  have 
the  three  cents  and  buy  his  own  oranges.  So  we  agreed  to  give 
him  three  cents  and  went  away.  {Turning  to  the  Judge.)  Shall 
I  tell  them  about  what  we  did  the  rest  of  the  afternoon  ? 

The  Judge.  No,  no ;  tell  them  only  what  you  did  at  seven 
o'clock  to  bring  the  pole  home. 

Clicket.  We  went  to  the  station  a  good  while  before  the  time, 
because  Ogden  thought  that  we  might  have  some  trouble  with  the 
fishing-pole.  We  found  the  man  that  we  had  given  it  to,  and  he 
gave  it  back  to  us,  and  we  gave  him  the  three  cents.  Now,  says 
I,  Ogden,  how  are  you  going  to  carry  it  ?  Are  you  going  to  put 
it  in  the  baggage-car  ?  No,  says  he,  the  baggage-car  is  not  long 
enough  to  take  it  in.  So  we  went  to  the  baggage-car  and  meas 
ured,  and  found  the  pole  was  a  great  deal  too  long.  Could  you  not 
put  it  on  the  top  ?  says  I.  No,  says  he,  there's  no  way  to  fasten  it 
there.  Then,  says  I,  we  must  stand  on  the  platform  all  the  way, 
and  hold  it  upright.  No,  says  he,  because,  in  that  case,  when  we 
pass  under  a  bridge  or  through  a  tunnel,  the  top  would  strike,  and 
so  be  broken  off.  Then,  says  I,  we  must  hold  it  crosswise.  No, 
says  he,  for  then,  when  we  go  over  a  bridge,  both  ends  would  strike 
against  the  timbers.  Then,  says  I,  I  don't  see  what  you  will  do. 
I  don't  see  any  other  way.  Ogden  said  there  were  two  or  three 
other  ways.  One  way,  said  he,  would  be  to  slide  it  in  under  the 
cars ;  but  he  did  not  like  to  do  that,  because  the  man  would  not 


BAEGAIN   NOT   CONCLUDED.  59 

How  Ogden  did  not  bring  the  pole.  How  he  did. 

let  him  crawl  under  to  tie  it  there ;  and  then,  besides,  there  would 
not  be  time  to  untie  it  and  take  it  away  when  the  train  stopped 
for  them  to  get  out.  He  said  a  better  way  than  that  would*be 
for  him  and  me  to  go  with  it  to  the  last  car  in  the  train,  and  stand 
with  it  on  the  platform  behind,  and  hold  it  there,  just  as  if  we 
were  fishing  from  the  stern  of  a  vessel.  But  he  said  he  did  not 
like  that  way  very  well.  Another  way  he  thought  of  was  to  car 
ry  the  pole  into  the  car,  and  lay  it  along  on  the  tops  of  the  seats, 
close  under  the  windows ;  but  he  was  afraid  to  put  it  there  for 
fear  that  somebody  might  come  in  and  undertake  to  turn  the  back 
of  some  seat,  without  seeing  that  the  pole  was  there,  and  so 
split  it. 

The  Judge.  But,  Clicket,  we  don't  want  to  hear  about  all  these 
ways  in  which  you  did  not  bring  the  pole.  What  we  want  to 
know  is  how  you  did  bring  it.  Come  right  to  the  point  at  once, 
and  tell  us  how  you  did  bring  it. 

Clicket.  I'll  tell  you.  This  was  the  way :  Ogden  took  a  piece 
of  twine  that  he  had  in  his  pocket,  and  cut  it  in  two,  so  as  to 
make  two  strings.  Then  he  gave  me  one,  and  took  the  other 
himself.  I  went  with  my  string  to  one  of  the  windows  near  the 
front  end  of  the  car — the  longest  car  in  the  train.  I  let  my 
string  out  of  the  window,  and  Ogden,  who  stood  outside  with  tho 
pole,  tied  the  end  of  the  string  round  the  pole  pretty  near  the  big 
end.  Then  I  drew  the  string  in,  so  as  to  bring  the  big  end  of 
the  pole  up  to  the  side  of  the  car,  close  under  the  window.  Then 
I  shut  down  the  window  upon  the  string,  so  as  to  hold  it  there. 
Now,  says  Ogden,  go  to  the  other  end  of  the  car,  and  we'll  fasten 


60  BARGAIN    NOT    CONCLUDED. 

Ogden's  reason  for  calling  Clicket  Moses  is  called. 

the  other  end  of  the  pole  there  in  the  same  way.  So  we  did.  We 
had  time  to  do  all  this,  for  we  were  so  early  that  there  were  very 
few  people  in  the  cars.  Then,  when  we  had  it  all  done,  Ogden 
took  his  seat  by  one  of  the  windows,  where  a  string  came  in,  and  I 
took  my  seat  at  the  other,  and  so  we  were  by  the  pole  all  the  way. 

The  Judge.  And  how  did  you  manage  in  getting  the  pole  off 
when  the  train  stopped  at  our  station  ? 

Clicket.  Why,  we  had  our  knives  all  ready,  as  soon  as  we  got 
upon  the  platform,  and  I  went  to  one  end  of  the  pole  and  Ogden 
to  the  other,  and  we  cut  the  strings  both  at  the  same  time,  and  so 
took  the  pole  away. 

Warner.  Very  well ;  I  have  no  more  questions  to  ask. 

Ogden.  Then,  Clicket,  you  may  go.  The  reason,  gentlemen 
of  the  jury,  why  I  brought  this  witness  in  to  prove  these  facts,  is 
not  only  that  you  may  see  that  the  pole  was  really  mine,  but  also 
that  you  may  understand  how  much  trouble  I  took  to  get  it  here, 
and  how  much  I  valued  it. 

The  Judge.  Very  well ;  that  was  very  right  and  proper.  Now, 
Warner,  you  claim  that  you  bought  this  pole,  I  understand. 

Warner.  Yes,  I  do. 

The  Judge.  Very  well ;  proceed  to  prove  it. 

Warner.  My  first  witness  is  Moses. 

The  Judge.  Come  forward,  Moses,  and  give  your  evidence. 

Warner.  I  want  you  to  tell  the  jury,  Moses,  what  you  recol 
lect  about  a  bargain  I  made  with  Ogden  about  the  fishing-pole. 

Moses.  It  was  yesterday  afternoon.  We  were  all  sitting  on  a 
seat  near  the  pond. 


BAEGAIN    NOT   CONCLUDED.  61 

A  negotiation.  The  witness  should  speak  to  the  jury. 

The  Judge.  Whom  do  you  mean  by  all  ? 

Moses.  Ogden,  Warner,  Barker,  and  I ;  and  Jenny  was  playing 
about  pretty  near  there,  by  the  side  of  Warner's  pier. 

The  Judge.  Was  it  at  Warner's  pier  where  you  were  at  the 
time  ?  % 

Moses.  Yes ;  Warner  had  been  setting  up  a  flag-staff  near  his 
pier,  and  now  he  was  making  a  flag  to  hoist  upon  it.  Ogden  was 
making  a  drawing  of  the  seat  on  the  point  of  land  nearly  opposite. 
While  they  were  there,  they  began  to  talk  about  Ogden's  swap 
ping  his  fishing-pole  for  a  pair  of  compasses  that  belonged  to 
Warner. 

Warner.  Who  proposed  the  trade  first  ? 

Moses.  You  did  not  propose  it ;  Ogden  did. 

The  Judge.  Give  your  answer  to  the  jury,  Moses,  not  to  War 
ner.  Warner  asks  you  the  questions,  but  he  asks  them  for  the 
benefit  of  the  jury,  for  it  is  they  who  have  this  question  to  decide ; 
so  you  must  address  your  answer  to  them. 

Moses  (turning  to  the  jury).  Ogden  proposed  it ;  at  least  he 
said  that  he  would  not  sell  his  pole  for  money,  and  he  did  not 
know  of  any  thing  that  Warner  had  that  he  would  exchange  it  for 
unless  it  was  his  compasses. 

Warner.  And  did  I  offer  him  my  compasses  for  it  ? 

Moses.  Yes  ;  and  he  said,  Well. 

The  Judge.  And  so  you  understood  that  the  bargain  was  con 
cluded? 

•jl 

Moses.  At  any  rate,  he  said  Well.  He  asked  Warner  where 
the  compasses  were.  Warner  said  they  were  up  in  his  room,  and 


62  BARGAIN   NOT   CONCLUDED. 

The  circumstances  of  the  bargain  concerning  the  pole  and  the  compasses. 

Ogden  asked  him  to  go  and  get  them.  He  said  he  would,  and 
he  did. 

The  Judge.  He  brought  them  down  and  gave  them  to  Ogden  ? 

Moses.  Yes. 

The  Judge.  And  Ogden  received  them  ? 

Moses.  Yes ;  he  took  them,  looked  at  them,  and  put  them  in  his 
pocket,  and  then  went  on  with  his  drawing. 

Warner.  And  now  about  the  pole — tell  the  judge  about  his  de 
livering  the  pole. 

Moses.  Warner  asked  him  where  the  pole  was,  and  he  told  him 
that  it  was  in  the  long  shed,  hung  there  under  a  certain  beam. 
Warner  asked  him  if  he  might  go  and  get  it,  and  Ogden  said  Yes  ; 
so  Warner  went  and  got  it. 

The  Judge.  You  are  positive  that  Ogden  distinctly  gave  War 
ner  leave  to  go  and  get  the  pole,  are  you,  Moses  ? 

Moses.  Yes,  I  am.  Warner  said,  I  am  going  to  get  it — shall  I  ? 
and  Ogden  said  Yes. 

The  Judge.  Very  well.  This  looks  so  far  very  much  like  a 
regular  bargain,  with  the  delivery  of  the  property  to  consummate 
it.  However,  we  will  wait  to  hear  what  the  other  party  have  to 
say.  Is  this  all  you  want  of  this  witness,  Warner  ? 

Warner.  No ;  I  wish  to  ask  him  another  question.  Tell  the 
jury,  Moses,  whether  any  thing  was  said  about  the  condition  that 
the  compasses  were  in. 

Moses.  Yes,  there  was  something  said  about  it,  but  I  did  not 
hear  it  all.  One  thing  was,  Warner  said  the  brass  was  tarnished, 
but  Ogden  said  he  did  not  care  any  thing  about  that ;  he  could 


BARGAIN    NOT   CONCLUDED.  63 

Ogden's  defense.         •  Why  Moses  did  not  hear  the  conversation. 

rub  it  bright  again  very  easily.  Warner  said,  besides,  something 
about  the  points  being  dull,  and  the  joints  being  loose,  and  Ogden 
said  he  did  not  care  any  thing  about  those  things  either. 

Warner.  So  the  jury  will  please  to  observe  that  it  was  under 
stood  at  the  time  that  the  bargain  was  made  that  the  compasses 
were  not  in  very  good  condition,  so  that  the  plaintiff  can  not  dis 
avow  the  bargain  on  that  account.  I  have  no  more  questions  to 
ask,  and  I  think  I  have  proved  that  Ogden  sold  the  fishing-pole 
to  me,  and  that  he  got  what  he  bargained  for  as  pay  for  it. 

Offden.  Before  this  witness  goes,  I  wish  to  ask  him  one  ques 
tion,  and  I  also  wish  the  jury  to  remember  the  old  proverb  about 
one  story  being  good  till  another  is  told.  I  think  I  can  bring  for 
ward  some  evidence  that  will  throw  new  light  upon  this  transac 
tion.  I  do  not,  however,  mean  at  all  to  impugn  Moses's  testi 
mony  ;  all  that  he  has  said  is  strictly  true,  I  have  no  doubt ;  but 
there  are  some  other  facts  that  you  ought  to  know  before  you  de 
cide  the  question.  I  shall  bring  forward  other  witnesses  to  prove 
these  additional  facts  ;  but  first  I  want  to  ask  Moses  one  ques 
tion.  You  said,  Moses,  I  believe,  that  you  did  not  hear  all  we 
said  about  the  condition  that  the  compasses  were  in  ? 

Moses.  Yes,  I  did  say  so. 

Ogden.  What  is  the  reason  you  did  not  hear  ? 

Moses.   Why,  I  did  not  pay  much  attention. 

Ogden.  Why  did  not  you  pay  attention  ? 

Moses.  I  was  busy  at  the  time  untangling  my  kite  string,  and 
looking  at  the  pictures  in  a  little  story-book  that  Jenny  had 
there. 


64  BAEGAIN   NOT   CONCLUDED. 

Barker's  testimony.  The  offer.  The  reply. 

Ogden.  So  you  don't  think  you  heard  all  the  conversation  that 
passed  distinctly? 

Jlfoses.  No,  I  only  heard  what  I  have  told  you ;  but  I  am  very 
'  sure  that  all  I  have  told  you  is  true. 

Ogden.  I  have  no  doubt  of  it  at  all.  But  you  may  go  now, 
and  I  wish  Barker  to  come. 

Here  Moses  retired,  and  Barker  took  his  place  on  the  witness 
stand. 

Ogden.  Did  you  hear  Warner  offer  me  his  compasses  for  my 
fishing-pole  ? 

Barker.  Yes,  I  did. 

Ogden.  What  were  you  doing  at  the  time  ?     Tell  the  jury. 

Barker.  I  was  looking  on  to  see  Ogden  draw. 

The  Judge.  And  you  were  listening  to  the  conversation  at  the 
same  time,  I  suppose  ? 

Barker.  Yes,  I  was  paying  particular  attention  to  it. 

Ogden.  Moses  stated  that,  when  Warner  made  me  that  offer,  I 
said  Well.  How  did  I  say  it — I  mean,  in  what  tone  of  voice  ? 
Did  I  say  it  decidedly,  as  if  I  meant  to  settle  the  question,  or  in  a 
doubtful  tone  ? 

Barker.  You  said  it  in  a  doubtful  tone. 

The  Judge.  Are  you  confident  of  that,  Barker  ?  Because  that 
is  a  very  important  point. 

Barker.  Yes,  I  am  very  confident  of  it,  not  only  because  I  re 
member  distinctly  the  tone  itself,  but  also  from  what  he  said  at 
the  same  time. 

The  Judge.  What  was  it  that  he  said  ? 


BARGAIN   NOT   CONCLUDED.  65 

What  Ogden  said  about  the  compasses.  Dull  points. 

Barker.  He  said  perhaps  lie  would,  or  lie  rather  thought  he 
would,  or  something  of  that  sort. 

Ogden.  Well,  now,  Barker,  you  heard  what  Moses  said  in  re 
gard  to  the  conversation  that  took  place  between  me  and  Warner 
in  respect  to  the  condition  the  compasses  were  in.  Was  any  thing 
else  said  besides  what  Moses  repeated? 

Barker.  Yes ;  Ogden  said  that  he  did  not  care  any  thing  about 
the  brass  being  tarnished,  because  he  could  easily  polish  it  again, 
nor  about  the  joint  being  loose,  for  he  could  easily  tighten  it  by 
turning  the  screw  or  hammering  the  rivet,  nor  about  the  points 
being  dull,  because  he  could  easily  sharpen  them.  The  only  thing 
he  cared  about,  he  said,  was  that  the  points  should  be  of  steel. 
He  said  that  the  points  of  some  compasses  were  made  of  iron,  and 
some  of  steel,  and  that  iron  points  would  not  stand  at  all  for  nice 
work.  He  did  not  care  how  dull  the  points  were,  he  said,  if  they 
were  only  of  steel,  for  he  could  grind  them  down  and  sharpen 
them  himself  as  fine  as  needles. 

The  Judge.   What  did  Warner  say  to  this  ? 

Barker.  He  asked  him  how  he  could  tell  whether  they  were  of 
steel  or  of  iron.  Ogden  said  he  could  tell  very  easily  when  he 
came  to  see  them  and  examine  the  points.  He  could  tell  by  the 
kind  of  dullness.  If  the  dullness  was  made  by  the  points  hav 
ing  broken  off  without  any  bending,  that  would  show  that  they 
were  of  steel ;  but  if  the  points  were  bent,  that  would  show  they 
were  of  iron ;  so  Warner  said  he  would  go  and  get  the  compasses 
and  let  him  see. 

Ogden.  And  he  brought  the  compasses  down  ? 
si  E 


66  BAJiGAIN    NOT    CONCLUDED. 

Ogden  took  the  compasses  to  examine  them. 

Barker.  Yes ;  he  went  to  the  house,  got  the  compasses,  and 
brought  them  down,  and  handed  them  to  you. 

Ogden.  Address  the  jury  in  your  answers. 

Barker  (continuing).  He  handed  them  to  Ogden. 

The  Judge.  And  how  did  Ogden  receive  them  ?  What  did  he 
say?  Be  particular  in  this,  because  it  is  a  very  important  point. 

Barker.  He  took  them  and  looked  at  them,  and  then  handed 
them  to  me,  and  asked  me  what  I  thought.  I  told  him  I  could 
not  tell.  Then  he  took  them  again,  and  said  that  he  could  not 
tell  very  well  without  his  magnifying-glass,  and  that  he  could 
take  them  up  to  the  house  when  he  went  home,  and  see.  So  he 
put  them  in  his  pocket.  He  rather  thought  they  were  steel. 

Ogden.  Now  there  is  one  thing  more.  The  other  side  at 
tempted  to  prove  that  I  delivered  the  fishing-pole  to  Warner  by 
telling  him  where  it  was,  and  authorizing  him  to  go  and  get  it. 
Relate  to  the  jury  what  the  conversation  was  in  respect  to  that. 

Barker.  Warner  said  that  he  did  not  believe  but  that  the  fish 
ing-pole  was  cracked.  He  said  he  never  knew  a  reed  fishing, 
pole  that  had  belonged  to  a  boy  a  week  that  was  not  cracked  in 
some  joint  or  other,  and  generally  in  two  or  three  joints.  So  Og 
den  told  him  that  he  might  go  and  get  the  fishing-pole  and  see. 

The  Judge.  Very  well ;  and  that  is  all  you  know  about  it. 

Barker.  Yes,  except  that  a  little  while  afterward,  when  Ogden 
had  finished  his  drawing,  we  went  up  to  the  house,  and  there  we 
saw  Warner  with  the  fishing-pole,  which  he  said  was  his.  Og 
den  said  No ;  that  the  bargain  was  not  concluded ;  that  he  had 
not  yet  decided  to  take  the  compasses.  Warner  said  that  he  did 


BARGAIN    NOT   CONCLUDED.  67 

After  the  evidence  is  all  given  the  parties  should  be  heard. 

decide  to  take  them  if  the  points  were  of  steel,  and  that  they  were 
of  steel,  he  said ;  so  it  was  all  settled.  Then  Ogden  said  that, 
before  going  any  farther,  he  would  go  to  court  with  the  case,  and 
have  it  decided  whether  the  fishing-pole  was  already  Warner's  or 
not. 

Ogden.  That  is  all  I  have  to  ask  this  witness,  and  I  have  no 
other  witnesses. 

The  Judge  (to  Warner).  Do  you  wish  to  cross-examine  this 
witness  ? 

Warner.  No,  I  believe  not. 

The  Judge.  Then  the  next  thing  is  to  hear  what  the  parties 
have  to  say  to  the  jury  before  the  jury  decide.  Ogden,  you  are 
plaintiff;  it  is  your  turn  first. 

Ogden.  Gentlemen  of  the  jury,  I  have  proved  to  you  that  this 
was  my  pole.  I  bought  it  in  New  York,  and  Clicket  and  I 
brought  it  here,  and  we  took  a  great  deal  of  pains  in  doing  it.  It 
is  a  valuable  pole,  and  I  have  no  idea  of  letting  it  go  out  of  my 
possession  till  I  have  actually  sold  it.  Talking  about  selling  a 
pole  is  one  thing,  and  actually  concluding  the  sale  of  it  is  another. 
I  maintain  that  although,  in  this  case,  we  talked  about  a  trade, 
and  although  we  have  not  yet  decided  not  to  make  it,  still,  it  is 
not  yet  concluded,  and,  until  it  is  concluded,  the  pole  is  mine,  and 
I  have  a  right  to  it ;  and,  accordingly,  that  you  ought  to  decide 
that  Warner  should  give  it  up  to  me. 

The  Judge.  Well,  Warner,  what  have  you  to  say  ? 

Warner.  Gentlemen  of  the  jury,  I  have  proved  that  we  agreed 
to  make  this  trade,  provided  that  I  found  the  pole  not  cracked. 


68  BARGAIN   NOT   CONCLUDED. 

The  arguments.  Ogden's  statement  of  the  question. 

and  that  he  found  the  points  of  the  compasses  were  of  steel.  He 
took  the  compasses  and  examined  them,  and  could  not  deny  but 
that  they  were  of  steel;  I  took  the  pole  and  examined  it,  and 
found  it  was  not  cracked ;  so,  I  think,  the  bargain  is  all  settled. 

For,  even  by  his  own  showing,  he  is  bound  to  take  the  com 
passes  if  he  finds,  when  he  comes  to  examine  them  with  a  micro 
scope,  that  the  points  are  of  steel.  If  he  were  to  wait  till  he  had 
examined  them,  and  were  really  to  find  that  they  are  of  iron,  then 
I  confess  that  he  might  claim  the  pole  again.  But  he  has  not 
done  that ;  and,  even  if  I  give  him  the  pole  now,  and  he  finds  the 
points  of  the  compasses  are  of  steel,  then  I  could  come  to  him  and 
claim  the  pole  again,  and  it  makes  no  difference  whether  I  keep  it 
now  or  take  it  then. 

The  Judge.  Ogden,  have  you  any  thing  more  to  say  ?  You  are 
entitled  to  the  last  word,  if  you  wish  it. 

Ogden.  I  wish  to  say,  in  regard  to  the  last  point  that  Warner 
made,  that  I  do  not  deny  that  I  shall  be  obliged  to  give  him  the 
pole  for  the  compasses  in  case,  after  I  examine  them,  I  find  the 
points  to  be  of  steel ;  nor,  on  the  other  hand,  do  I  admit  it.  I 
neither  deny  it  nor  admit  it.  I  say  nothing  about  it.  We  have 
not  come  to  that  yet.  The  question  before  this  jury  is  not  wheth 
er  I  shall  be  obliged  to  give  him  my  pole  when  I  find  the  points 
of  the  compasses  are  all  right,  but  whether  I  have  already  given 
it  to  him.  That  is  to  say,  the  question  is  not  whether  he  will 
have  a  right  to  claim  the  pole  by-and-by,  but  whether  it  is  his 
now. 

The  Judge.  Gentlemen  of  the  jury,  the  question  you  have  to 


BARGAIN   NOT    CONCLUDED.  69 

Was  the  bargain  concluded.  The  jury  decided  it  was  not 

decide  is  a  very  simple  one.  Was  the  bargain  concluded  ?  Did 
the  parties  come  to  a  conclusion  that  they  would  make  this  ex 
change,  and  did  Ogden  receive  the  compasses  as  his  property,  de 
livered  to  him  by  Warner,  and  did  he  deliver  the  pole  as  proper 
ty  that  he  had  conveyed  to  Warner  ?  Or,  were  the  articles  re 
ceived  and  delivered  only  for  examination,  with  a  view  to  decide 
contingencies  on  which  the  consummation  of  the  bargain  was  to 
depend  ?  If  you  think  that  the  bargain  was  concluded,  then  you 
must  decide  that  Warner  has  a  right  to  keep  the  pole.  If  you 
decide  it  was  not  concluded,  Ogden  is  entitled  to  the  possession 
of  the  pole  until  it  is,  and  Warner  must  give  it  up  to  him. 

The  jury,  after  retiring  for  a  short  time,  returned  into  court,  and 
announced  their  verdict  as  follows : 

The  bargain  was  not  concluded,  and  Warner  must  give  up  the 
pole. 


70  ONE   THING   AT   A   TIME. 

Bond  vs.  Clicket.  The  complaint  The  defendant's  offer. 


V. 

ONE  THING   AT   A  TIME. 
JBond  against  Clicket. 

JUDGE  JUSTIN   presiding.      For  Bond,  Orville   appeared   as 
counsel  ;  for  Clicket,  Warner. 

The  case  was  opened  by  the  clerk's  reading  a  brief  statement 
of  the  plaintiff's  claim,  as  follows  : 


il  7&at,na=uintt  .  ana  (2s 

</  <7  0  / 

nwi  fo  awe  t£  vacn  fo  me. 


The  Judge.  Well,  Clicket,  what  do  you  say  to  this  ? 

Clicket.  I  say  I'll  give  him  back  his  riding-whip  as  soon  as  he 
will  give  me  back  my  hatchet. 

The  Judge.  Well,  Orville,  proceed  and  prove  your  case. 

Orville.  My  first  witness  is  Barker.  Come  forward,  Barker, 
and  testify. 

The  Judge.  What  do  you  intend  to  prove  by  this  witness  ? 

Orville.  I  intend  to  prove  that  my  client,  Bond,  had  a  whip, 
and  that  Clicket  took  it  away  from  him,  and  has  got  it  now,  and 
won't  give  it  back  to  him. 


ONE   THING   AT   A   TIME.  71 

The  riding  excursion  on  Saturday  afternoon. 

The  Judge.  Very  well ;  that  will  be  in  order.  Go  on  with 
the  examination  of  your  witness. 

Orville.  I  want  you  to  tell  the  jury,  Barker,  about  the  ride 
that  the  boys  took  last  Saturday  afternoon,  and  about  Bond's 
buying  a  whip. 

Barker.  The  way  of  it  was  this :  we  four  boys  wanted  to  go 
and  have  a  ride — 

The  Judge  (interrupting).  What  four  boys  ? 

Barker.  Bond,  Clicket,  Robin,  and  I.  We  asked  Dr.  Mather 
if  we  could  have  his  horses.  He  said  we  could  have  two  of  them, 
and  we  must  get  the  other  two  somewhere  else.  So  we  concluded 
to  start  with  two  horses,  and  go  out  to  Wingate's,  and  try  to  get 
the  other  two  there.  We  concluded  to  ride  double  as  far  as  Win- 
gate's  ;  so  Bond  got  up  behind  me  on  one  of  the  horses,  and  Robin 
got  up  behind  Clicket  on  the  other. 

Warner.  Did  Bond  have  his  riding-whip  then  ? 

Jiarker.  No ;  he  bought  it  afterward,  in  the  course  of  his  ride. 
I'll  tell  the  jury  about  that  when  I  come  to  it.  We  had  no  riding- 
whip  when  we  set  out — nothing  but  switches.  We  all  had 
switches.  We  cut  them  from  a  willow  tree.  When  we  got  to 
Wingate's  we  got  two  other  horses,  and  then  we  all  four  rode  on. 

The  Judge.  Well,  come  to  the  time  when  Bond  bought  his 
whip. 

Barker.  I'm  coming  to  it  now.  We  rode  on  till  we  came  to  a 
place  where  four  roads  met,  and  there  was  a  store  on  the  corner. 
There  was  a  pump  before  the  store,  and  a  trough.  We  stopped 
there  to  water  our  horses.  While  we  were  stopping  we  saw  sonic 


72  ONE    THING   AT    A   TIME. 

Bond  bought  a  riding-whip  at  the  country  store.  A  mysterious  disappearance. 

whips  hanging  at  the  window  of  the  shop,  and  Bond  said  he  meant 
to  go  in  and  buy  one. 

The  Judge.  What  kind  of  whips  were  they  ?  Were  they  long 
whips,  or  riding-whips  ? 

Barker.  There  were  both  kinds,  but  the  kind  that  Bond  was 
going  to  buy  was  a  riding-whip.  He  said  the  willow  switches 
were  not  good  for  any  thing,  the  ends  were  so  brittle ;  the  only 
kind  of  switches  that  were  tough  were  birch  switches.  So  he 
gave  me  the  bridle  of  his  horse  to  hold  while  he  went  in  to  buy 
the  riding-whip.  Presently  he  came  out  with  one  that  he  said  he 
gave  ten  cents  for. 

The  Judge.  What  kind  of  a  whip  was  it  ? 

Barker.  It  was  a  sort  of  cowhide,  but  pretty  small'  and  light. 
It  was  a  very  good  kind  of  a  whip. 

Orville.  Go  on,  and  tell  what  became  of  this  whip. 

Barker.  I  don't  know  what  became  of  it  at  all,  only  it  disap 
peared,  and  Clicket  said  he  knew  where  it  was. 

Orville.  Tell  the  jury  how  it  disappeared.  Tell  them  all  you 
know  about  it. 

Barker.  Why,  we  stopped  at  a  place  where  there  were  some 
children  getting  raspberries,  and  we  went  into  the  bushes  to  get 
some.  We  staid  there  some  time.  When  we  came  back,  the 
riding- whip  was  gone.  Instead  of  it,  there  was  a  birch  switch 
stuck  under  the  pommel  of  the  saddle,  where  Bond  had  left  his 
riding-whip.  Bond  was  quite  in  trouble  when  he  found  that  his 
riding-whip  was  gone  ;  but  presently  he  saw  Clicket  laughing,  and 
so  he  suspected  that  Clicket  had  got  it,  and  he  did  not  deny  it. 


ONE   THING    AT   A   TIME.  73 

What  Clicket  said  about  the  lost  whip.  Searching  in  vain. 

Warner.  Did  Clicket  admit  that  he  had  got  it  ? 

J2arker.  No,  he  did  not  then ;  he  only  laughed.  Bond  looked 
all  about  to  see  if  he  could  find  his  whip,  and  the  more  he  looked 
the  more  Clicket  laughed.  At  last  Clicket  told  him  that  he  need 
not  be  concerned,  for  he  said  if  we  all  got  on  our  horses  and  rode 
home,  the  whip  would  go  home  too.  At  last  Bond  got  tired  of 
looking,  and  so  we  all  got  on  our  horses  and  rode  home. 

The  Judge.  And  is  this  all  you  know  about  it  ? 

Barker.  Yes ;  only  that  when  we  got  to  Wingate's,  where  we 
stopped  to  leave  the  two  horses,  Bond  demanded  of  Clicket  again 
that  he  should  give  him  up  his  whip,  or,  at  least,  tell  him  where 
it  was. 

The  Judge.  And  what  did  Clicket  say  ? 

Barker.  Says  he,  "  When  you  give  me  back  my  hatchet,  I  will 
give  you  back  your  whip."  Bond  asked  him  then  if  he  had  the 
whip,  but  he  would  not  say  whether  he  had  it  or  not,  only  he  said 
it  would  be  at  home  by  the  time  they  were.  "  Then,"  said  Bond, 
"you  have  got  it  somewhere  about  you."  "If  you  think  so," 
said  Clicket,  "you  may  search  me." 

The  Judge.  And  did  he  search  him  ? 

Barker.  Yes  ;  he  came  and  felt  of  his  clothes  all  about,  but  he 
could  not  find  any  thing  of  it.  He  searched  Robin,  too,  in  the 
same  way. 

The  Judge.  What  made  him  suspect  Robin  ? 

Barker.  He  thought  from  his  looks  that  he  knew  something 
about  it.  Besides,  Robin  went  down  with  Clicket  to  where  the 
horses  were  while  we  were  getting  the  raspberries. 


74  ONE   THING    AT    A   TIME. 

The  raspberrying  party.  Buying  milk. 

_ ! 

The  Judge.  And  that  is  all  you  have  to  say  ? 

Barker.  Yes  ;  that  is  all. 

Warner.  I  wish  to  cross-examine  this  witness  before  he  goes. 
I  wish  to  examine  him  more  particularly  in  respect  to  what  was 
done  on  the  raspberry  ground,  in  order  to  ascertain  whether  some 
one  else  might  not  have  taken  the  whip. 

The  Judge.  Very  well.     Ask  your  question. 

Warner.  Give  a  full  account,  Barker,  of  what  happened  while 
you  were  on  the  raspberry  ground. 

Barker.  We  left  our  horses  and  went  in  among  the  bushes, 
where  we  heard  some  voices  of  people  raspberrying.  When  we 
got  in  we  found  several  people.  There  was  a  large  girl,  and  sev 
eral  small  girls,  and  a  boy.  One  of  the  children  had  a  large  tin 
mug.  Clicket  said  that  that  would  be  a  nice  thing  to  eat  rasp 
berries  and  milk  out  of.  Robin  said  we  could  get  some  milk  very 
easily,  for  there  was  a  cow  browsing  thei'e  among  the  bushes,  and, 
Clicket  said  he  could  make  some  spoons  out  of  good  thick  birch- 
bark.  So  we  asked  the  girl  if  that  was  their  cow.  She  said  it 
was.  Then  we  asked  her  if  she  would  sell  us  that  mug  half  full 
of  milk  for  two  cents,  and  she  said  she  would.  So  we  milked  the 
dipper  half  full  of  milk. 

Warner.  Who  did  this  milking  ? 

Barker.  Clicket  did  it. 

Warner.  Well,  what  happened  next  ? 

Barker.  After  Clicket  had  half  filled  the  dipper,  he  and  Robin 
said  they  would  go  and  get  some  birch  bark,  while  Bond  and  I 
filled  up  the  dipper  with  raspberries.  He  said  he  saw  some  of 


ONE   THING   AT   A   TIME.  75 

The  plaintiff  calls  upon  the  defendant  to  testify.  A  question. 

the  right  kind  on  a  tree  growing  near  where  we  left  the  horses. 
So  he  and  Robin  went  down  there  to  get  some,  and  it  was  while 
he  was  gone  down  there  to  get  the  birch  bark  that  Bond  and  I 
think  he  hid  away  the  whip ;  and  that's  all  I  know. 

The  Judge.  Well,  Orville,  proceed  now  with  your  case. 

Orville.  I  think,  gentlemen  of  the  jury,  I  have  made  it  very 
plain  by  this  witness  that  Clicket  really  took  the  whip,  and  that 
he  knows  where  it  is,  if  he  has  not  got  it  himself.  I  don't  know 
how  he  contrived  to  make  it  disappear  so  mysteriously.  Perhaps 
he  saw  somebody  going  by  in  the  road,  and  sent  it  home  by  them. 
At  any  rate,  I  believe  he  knows  what  became  of  it,  and  I  am  going 
to  call  him  as  a  witness  and  require  him  to  tell.  So,  Clicket,  come 
into  court  and  answer. 

Hereupon  Clicket  came  forward  from  among  the  by-standers 
and  took  his  place  on  the  stand. 

Orville.  I  want  you  to  tell  the  jury,  Clicket,  what  became  of 
that  whip. 

Warner.  Stop  a  moment.  Before  my  client  answers  that  ques 
tion,  I  wish  to  have  the  judge  say  whether  or  not  he  is  bound  to 
answer  it.  He  will  answer  it,  or  any  other  question  whatever 
that  is  asked  him,  if  the  judge  requires  it. 

The  Judge.  He  is  not  bound  to  answer  the  question  if  the  an 
swer  would  be  against  himself.  I  will  ask  him  the  question  in 
another  form.  Do  you  know,  Clicket,  of  any  one  besides  your 
self  that  took  that  whip  ?  If  you  do,  tell  the  jury  what  they  did 
with  it. 

Clicket.  No,  I  do  not. 


76  ONE   THING   AT   A  TIME. 

No  honorable-minded  person  should  refuse  to  testify  in  a  court  of  justice. 

The  Judge.  I  don't  see  that  we  can  require  him  to  say  any 
thing  more.  No  person  is  bound  to  testify  against  himself. 

Orville.  Very  well.  Then  I  will  dismiss  this  witness  and  call 
Robin.  Robin,  come  forward. 

Clicket  here  retired,  and  Robin  took  his  place  upon  the  stand. 

Orville.  Did  you  go  down,  Robin,  with  Clicket  after  the  birch 
bark,  when  the  boys  were  in  the  woods,  raspberrying,  last  Satur 
day  afternoon  ? 

Robin.  Yes,  I  did. 

Orville.  Did  you  go  to  where  the  horses  were  tied,  or  did  you 
only  go  to  the  birch  tree  ? 

Robin.  We  went  to  the  horses. 

Orville.  Did  you  see  Clicket  take  Bond's  riding-whip,  and  did 
you  see  what  he  did  with  it  ? 

Robin  (after  hesitation}.  Yes,  I  did. 

Orville.  Then  tell  the  jury  what  he  did  with  it. 

Robin  (hesitating  and  looking  toward  the  judge).  I  had  rather 
not  answer  that  question,  if  I  could  help  it. 

The  Judge.  Should  you  criminate  yourself  in  any  way  by  an 
swering  it  ? 

Robin.  No,  I  should  not,  because  I  did  not  do  any  thing  about 
it  myself. 

The  Judge.  Then  you  are  bound  to  answer  the  question.  We 
are  all  bound  to  give  testimony  in  courts  of  justice,  and  no  honor 
able-minded  person  ever  refuses  to  do  so. 

Robin.  I  don't  refuse  to  answer  it  if  you  say  I  ought  to.  It  is 
only  on  Clicket's  account. 


ONE   THING    AT    A   TIME.  77 

How  Bond  brought  his  whip  home  without  knowing  it. 

Clicket  (outside).  I  don't  care. 

The  Judge.  Order  I  Silence  among  the  by-standers !  (To  Rob 
in.]  I  think  you  are  bound  to  answer  the  question. 

Robin  (smiling).  Well,  the  way  he  did  it  was  this :  he  hid  it 
under  the  mane  of  Bond's  horse,  and  tied  it  there  with  some  of 
the  hairs,  entirely  under,  out  of  sight ;  and  so  Bond  brought  his 
whip  home  himself  on  his  own  horse's  neck.  (Laughter  among 
the  by-standers.}  When  he  got  home,  Clicket  went  into  the  barn, 
after  the  horse  was  put  up,  and  took  out  the  whip. 

The  Judge.  And  has  he  got  it  now  ? 

Robin.  I  suppose  he  has. 

Orville.  Now,  gentlemen  of  the  jury,  I  think  my  case  is  made  out. 
We  will  hear,  however,  what  they  have  to  say  on  the  other  side. 

The  Judge.  Proceed  now,  Warner,  and  call  the  witnesses  for 
the  defense. 

Warner.  The  first  witness  I  have  to  call  is  Solomon. 

The  Judge.  Come  forward,  Solomon. 

Solomon  takes  his  place  upon  the  stand. 

Warner.  Do  you  recollect,  Solomon,  being  in  the  woods  near 
the  Bronx  River  when  the  boys  had  a  fire,  last  week,  on  a  Wed 
nesday  afternoon  ? 

Solomon.  Yes. 

Orville.  I  should  like  to  know  what  they  are  going  to  prove 
by  this  witness. 

The  Judge.  Well,  Warner,  what  is  it  that  you  are  going  to 
prove  ? 

Warner.   The  jury  will  recollect  that  one  of  the  witnesses  said 


78  ONE   THING   AT    A   TIME. 

The  hatchet.  Justification.  One  thing  at  a  time. 

that  Clicket  gave  as  the  reason  why  he  would  not  give  up  the 
whip  was  that  Bond  had  got  his  hatchet.  Now  I  wish  to  show 
by  this  witness  that  Bond  has  taken  away  Clicket's  hatchet,  and 
won't  give  it  to  him  ;  and  that's  the  reason  why  Clicket  keeps  his 
whip,  if,  indeed,  he  has  got  it,  which  I  don't  admit,  by  any  means. 

Orville.  But  I  maintain  that  that  has  nothing  to  do  with  this 
case.  Let  us  suppose  that  Bond  has  got  Clicket's  hatchet,  and 
that  he  has  no  right  to  it,  that  does  not  justify  Clicket  in  taking 
Bond's  whip  in  retaliation.  What  he  ought  to  do  is  to  bring  an 
action  in  this  court,  and  have  Clicket  required  to  give  up  the 
hatchet  by  a  decision  of  the  judge  and  jury.  He  has  no  right  to 
seize  property  of  Bond's  himself,  without  any  trial.  All  the  ques 
tion  that  is  before  the  court  in  this  trial  is  whether  Clicket  has 
got  Bond's  whip.  Whether  Bond  has  got  Clicket's  hatchet  is  an 
other  question  altogether,  and  ought  to  be  tried  by  itself ;  and  I 
object  to  their  bringing  forward  any  evidence  in  regard  to  it  now. 

The  Judge.  Well,  Warner,  what  have  you  to  say  on  this  point  ? 

Warner.  If  I  can't  bring  forward  this  proof,  then  I  have  no 
witnesses  to  offer.  I  can  not  undertake  to  prove  that  Clicket  has 
not  got  the  whip,  though  I  don't  admit  that  he  has  got  it ;  that  is 
for  the  jury  to  decide.  But  I  should  like  very  much  to  prove 
that  Bond  has  got  his  hatchet,  as  a  justification  for  Clicket,  if  he 
really  has  got  his  whip. 

The  Judge.  I  don't  think  you  can  be  allowed  to  do  that.  Even 
if  you  prove  that  Bond  has  got  Clicket's  hatchet,  it  would  be  no  jus 
tification  for  taking  the  whip.  That  is  a  separate  transaction,  and, 
if  brought  into  court  at  all,  must  be  brought  in  as  a  separate  case. 


ONE   THING   AT   A   TIME.  79 

Orville's  speech.  Warner's.  The  charge. 

Warner.  Very  well ;  then  I  have  not  any  more  to  say. 

The  Judge.  Orville,  have  you  any  remarks  to  make  to  the  jury  ? 

Orville  (addressing  the  jury).  I  have  shown,  gentlemen  of  the 
jury,  very  plainly,  that  the  whip  in  question  is  my  client's  prop 
erty.  He  bought  it,  and  paid  for  it,  and  Clicket  has  no  claim 
whatever  to  it.  He  does  not  even  pretend  to  have  any.  I  have 
proved,  however,  that  he  has  taken  the  whip,  and  that  he  has  it 
now.  It  is  true  he  has  a  certain  pretext  for  taking  it ;  but  the 
judge  has  decided  that  that  pretext  is  no  justification,  even  if  it 
is  true ;  so  that  I  think  you  ought  to  decide  by  your  verdict  that 
Clicket  should  give  up  the  whip.  If  he  has  any  complaint  to 
make  against  Bond  about  a  hatchet,  or  any  tiling  else,  let  him  bring 
it  into  court  as  an  independent  question.  We  will  then  hear  all  he 
has  to  say  about  it,  and  I  will  defend  my  client  as  well  as  I  can. 

The  Judge.  And  now,  Warner,  have  you  any  thing  to  say  ? 

Warner.  Gentlemen  of  the  jury,  I  will  leave  the  hatchet  out  of 
the  question,  as  the  judge  has  decided  I  must.  I  will  only  say 
now  that  you  will  have  to  consider  whether  it  is  really  proved 
that  Clicket  has  got  the  whip.  I  maintain  that  it  is  not  proved. 
Robin  saw  him  hide  it  under  the  horse's  mane,  it  is  true,  bat  there 
is  no  positive  evidence  that  he  took  it  out  again,  and,  if  he  did, 
that  is  no  proof  that  he  has  got  it  now. 

The  Judge.  Gentlemen  of  the  jury,  what  the  counsel  for  the 
defendant  has  just  said  is  perfectly  right.  All  you  have  to  con 
sider  is  whether  Clicket  took  the  riding- whip,  and  whether  he  is 
now  responsible  for  it,  and,  if  he  did  take  it,  what  he  ought  now  to 
do.  That  question  you  will  now  proceed  to  consider  and  decide. 


80  ONE   THING   AT   A   TIME. 

Verdict  for  the  plaintiff.  The  black  box.  Restitution  and  punishment. 

•The  iury  here  retired,  and,  after  being  absent  a  few  minutes, 
they  returned  into  court  with  the  verdict,  which  was  as  follows : 

That  Clicket  has  got  the  whip,  or  knows  where  it  is,  and  that 
he  must  give  it  to  Bond  immediately,  and  also  put  three  cents 
into  the  black  box. 

In  explanation  of  the  last  part  of  the  verdict,  it  is  proper  here  to 
say  that  there  was  a  black  box  kept  at  the  school,  in  which  the 
fines  that  were  inflicted  upon  the  boys  for  their  various  misde 
meanors  were  put,  and  once  in  a  fortnight,  or  once  in  a  month,  as 
the  case  might  be,  the  money  was  taken  out  and  expended  in  some 
pleasant  excursion,  in  which  all  the  boys  took  a  share — those*  who 
had  paid  the  fines  as  well  as  the  rest.  This  box  was  maMe  of  eb 
ony,  and  was  accordingly  called  the  black  box.  It  was  always 
kept  locked,  but  there  was  a  slit  in  the  top  of  it,  where  the  boys 
who  were  fined  could  put  in  the  money. 

The  fact  that  the  money  thus  collected  in  fines  was  all  expend 
ed  for  the  public  benefit  of  the  boys,  had  a  great  influence  in  pre 
venting  any  feeling  of  irritation  and  ill-humor  on  their  part. 

In  the  cases  that  were  tried  in  the  court,  the  defendant  was 
sometimes  required  not  only  to  make  restitution  to  the  plaintiff, 
but  he  was  also  fined  for  the  wrong-doing,  if  there  was  any  wrong 
doing  involved  in  the  transaction.  Among  men,  these  things  are 
kept  entirely  distinct.  A  man  can  not  be  tried  on  a  civil  and 
criminal  suit  at  the  same  time  ;  but  the  court  of  Morningdale  was 
not  yet  well  systematized,  and  many  practices  prevailed  in  it 
which  would  be  considered  as  irregular  in  ordinary  courts  of  law. 


STILL    ONE   THING    AT   A   TIME.  81 

Clicket  vs.  Bond.  Clicket  sues  for  his  hatchet. 


VI. 

STILL   ONE  THING   AT  A   TIME. 
Clicket  against  Bond. 

JUDGE  JUSTIN  presiding.     Warner  appeared  as  counsel  for 
Clicket,  Dana  for  Bond. 

The  case  was  introduced  by  the  following  brief  statement, 
drawn  u£  by  the  counsel  for  the  plaintiff,  and  read  by  the  clerk  : 

accade    J^Sona    o/  navina  tanen    mu 

ff  J7  </ 

atvau  ifi&m  me,,  ana  (2s  ctai'm  £na£  ne 


fo  awe  i£  u/i.        Q/ianea. 
<?  /  <r 


The  Judge.  Well,  Bond,  what  do  you  say  to  this  ? 

Bond.  I  say  I  have  a  right  to  keep  the  hatchet. 

The  Judge.  Very  well  ;  then  I  will  appoint  a  j  ury,  and  we  will 
try  the  case.  I  appoint  Orville  and  Otis  for  jury.  Come  for 
ward,  Orville  and  Otis,  and  take  your  places  on  the  jury  bench. 

Warner.  I  do  not  know  but  that  I  ought  to  object  to  Orville's 
being  on  the  jury. 

The  Judge.  Why?     What  objection  have  you  to  make? 

Warner.  He  was  the  counsel  for  Bond  in  the  last  case  that 

31  F 


82  STILL   ONE   THING   AT  A   TIME. 

A  juror  rejected.  The  hatchet.  How  Bond  got  it. 

was  tried,  and  that  case  was  connected  with  this,  so  that  I  am  not 
sure  that  he  can  be  considered  as  entirely  impartial. 

The  Judge.  I  think  that  is  a  good  objection,  so  I  appoint  Bar 
ker  in  his  place.  Barker  and  Otis  shall  be  the  jury. 

The  jury  took  their  proper  places,  and  the  judge  called  on  War 
ner  to  open  his  case. 

Warner.  My  first  witness  is  Homer. 

Homer  was  hereupon  called.  He  came  into  court,  and  gave  his 
testimony  as  follows. 

Warner.  I  want  you  to  tell  the  jury  what  happened  last  week, 
Tuesday,  between  Bond  and  Clicket  in  regard  to  a  hatchet.  ' 

Homer.  Why,  Bond  got  Clicket's  hatchet,  and  ran  off  with  it. 

Warner.  When  was  it,  and  how  ?     Tell  the  jury  all  about  it. 

Homer.  We  were  down  by  the  river  fishing,  and  we  had  a  fire 
there,  and  some  apples  to  roast.  Clicket  had  his  hatchet  there. 

The  Judge.  Are  you  sure  that  that  hatchet  was  Clicket's  ? 

Homer.  Yes ;  he  bought  it  with  the  pocket-money  that  he  had 
saved  up,  and  he  wrote  his  name  on  it,  too,  on  the  handle,  though 
it  afterward  got  pretty  much  worn  off,  and  now  it  is  altogeth 
er  off. 

Warner.  How  came  it  off? 

Homer.  Bond  rubbed  it  off  with  a  piece  of  sand-paper. 

Warner.  Well,  go  on.  Tell  the  jury  all  about  the  way  in  which 
he  took  the  hatchet. 

Homer.  Clicket  had  been  using  it,  cutting  sticks  to  put  upon 
the  fire.  After  he  had  done,  he  stuck  it  in  a  stump.  Bond  went 
and  'took  it.  Clicket  said  he  might  have  it,  but  he  must  put  it 


84  STILL   ONE   THING  AT   A   TIME. 

Clicket's  threat. "  Rules  of  evidence.  Warner  cites  the  case  of  Bond  vs.  Clicket. 

back  again ;  but  he  said  lie  should  not ;  he  said  it  was  his  hatch 
et.  Clicket  then  went  to  him  to  take  it  away  from  him,  and 
Bond  turned  round  and  brandished  the  hatchet  at  him  to  keep  him 
off.  Clicket  still  went  on  toward  him,  and  then  he  turned  round 
and  ran  away. 

The  Judge.  Did  Clicket  run  after  him  ? 

Homer.  No.  He  said  he  would  get  Warner  to  be  his  lawyer, 
and  bring  his  case  into  court. 

The  Judge.  That  was  right.  That's  the  very  best  thing  a  boy 
can  do  in  such  a  case. 

Warner.  Well,  now,  I  want  you  to  tell  the  jury,  Homer, 
what  the  pretext  was  that  Bond  said  he  had  for  carrying  off  the 
hatchet. 

The  Judge.  Stop  a  moment.  Let  me  see.  I  don't  know  that 
you  can  be  allowed  to  show  that. 

Warner.  Why,  I  want  to  show  that  the  only  reason  that  Bond 
had  for  carrying  off  the  hatchet  was  that,  as  he  said,  Clicket  had 
got  his  squirrel,  and  that's  no  reason  at  all.  We  have  had  a  case 
just  like  this  before.  Clicket  took  Bond's  riding-whip,  and  the 
reason  was,  he  said,  because  Bond  had  got  his  hatchet ;  and  the 
judge  decided  that  whether  Bond  had  his  hatchet  or  not,  it  was 
no  excuse  for  him  to  take  the  riding-whip.  Now,  in  this  case, 
Bond  is  proved  to  have  taken  the  hatchet,  and  I  want  to  show 
that  his  reason  for  it  is  just  the  same  with  that  which  was  de 
cided  to  be  not  a  good  reason  before. 

The  Judge.  That  is  all  correct ;  but  then  it  seems  to  me  that 
you,  as  Clicket's  counsel,  have  nothing  to  do  with  the  pretext 


STILL   ONE   THING   AT   A   TIME.  85 

Did  Clickct  assent  to  Bond's  taking  the  hatchet  ? 

which  Bond  had  for  carrying  off  the  hatchet.  That's  for  his  coun 
sel  to  show.  You  have  shown  that  the  hatchet  was  Clicket's,  and 
that  Bond  seized  it  and  carried  it  off.  That's  enough  on  your 
side.  It  is  for  them  to  show  what  their  pretext  was,  and  to  prove 
that  it  was  a  good  pretext. 

Warner.  Very  well.  I  will  leave  it  so,  then.  The  jury  will 
remember  that  this  witness  states  positively  that  the  hatchet  was 
Clicket's,  and  that  he  did  not  give  it  up  to  Bond. 

Dana.  No,  I  don't  understand  that  he  has  stated  that. 

Warner.  Then  I'll  ask  him  again.  How  is  that,  Homer  ?  Did 
Clicket  give  the  hatchet  to  Bond  ? 

Homer.  He  told  him  that  he  might  have  the  hatchet  to  cut 
sticks,  but  he  must  put  it  back  again. 

Dana.   So  it  seems  he  did  give  it  up  to  him. 

Warner.  I  don't  think  that's  giving  it  up  to  him  at  all. 

The  Judge.  This  is  not  the  right  time  to  argue  sucli  questions 
as  that.  We  are  examining  the  witnesses  now.  You  can  argue 
all  such  points  by-and-by,  when  we  have  got  the  facts  out.  You 
say,  Homer,  that  Clicket  allowed  Bond  to  take  the  hatchet,  en 
joining  him,  however,  to  bring  it  back  again  after  he  had  done 
cutting  sticks  with  it. 

Homer.  Yes,  that's  it. 

The  Judge.  Very  well.  That's  all.  Have  you  any  more  wit 
nesses,  Warner  ? 

Warner.  No,  I  have  no  more  at  present. 

The  Judge.   Then,  Dana,  it  is  your  turn. 

Dana.  My  first  witness  is  Moses. 


86  STILL   ONE  THING   AT   A   TIME. 

The  defense.  The  squirrel  in  exchange  for  the  hatchet. 

Warner  (to  the  judge).  I  should  like  to  know,  first,  what  he  is 
going  to  prove  by  this  witness. 

Dana.  I  am  going  to  prove  that  Bond  had  a  right  to  the 
hatchet. 

Warner.  He  is  going  to  try  to  prove  that  Bond  had  a  right  to 
the  hatchet,  because  Clicket  had  got  a  squirrel  that  he  said  be 
longed  to  him,  and  he  ought  not  to  be  allowed  to  prove  any  such 
thing.  It  is  no  matter  if  Clicket  had  got  his  squirrel ;  he  had  no 
right  to  retaliate  by  taking  away  any  thing  that  belonged  to 
Clicket.  He  ought  to  have  brought  the  case  into  court. 

The  Judge.  Is  that  so,  Dana  ?  Is  that  what  you  are  going  to 
prove  ?  ' 

Dana.  No ;  I  am  going  to  prove  that  the  hatchet  belonged  to 
Bond ;  that  he  had  bought  it  of  Clicket ;  and  that  he  had  a  right 
to  take  it  wherever  he  found  it.  In  order  to  prove  this,  I  shall 
have  to  go  back  to  something  that  took  place  the  day  before,  when 
the  boys  caught  a  squirrel  in  the  margin  of  the  woods.  I  am  going 
to  prove  that  Clicket  sold  Bond  the  hatchet  the  day  before,  and  so 
that  the  hatchet  was  his.  I  am  not  going  to  prove  that  he  took  it 
in  retaliation  for  Clicket's  having  his  squirrel  at  all. 

The  Judge.  Can  you  prove,  not  only  that  he  sold  him  the 
hatchet,  but  that  he  also  delivered  it  to  him  in  completion  of  the 
sale? 

Dana.  Why,  I  think,  when  he  told  him  that  he  might  take  the 
hatchet  off  the  stump,  that  was  delivering  it  to  him  in  fact. 

The  Judge.  And  that  is  all  the  delivery  you  can  prove  ? 

Dana.  Yes,  that  is  all. 


STILL   ONE   THING   AT   A   TIME.  87 

Judge  Justin's  view  of  the  evidence.  Argument* 

The  Judge.  Then  I  think  we  have  now  all  the  facts  to  enable 
the  jury  to  decide,  so  we  will  not  hear  any  more  witnesses.  If 
the  jury  think  that  Clicket  delivered  the  hatchet  to  Bond,  then 
Clicket  must  prove  something  else  than  merely  the  fact  that  Bond 
took  it  and  carried  it  away  to  make  out  his  claim  to  it.  But  he 
has  not  undertaken  to  prove  any  thing  else  ;  so  that,  so  far  as  that 
case  is  concerned,  all  depends  on  whether  Bond  took  it  unlawfully, 
and  we  seem  to  have  all  the  evidence  that  bears  on  the  point. 

Dana.  Very  well ;  then  I  have  no  more  witnesses. 

The  Judge.  And  now,  Warner,  what  have  you  got  to  say  to  the 
jury? 

Warner.  Gentlemen  of  the  jury,  it  seems  to  me  that  this  is  a 
very  clear  case.  I  have  proved  that  the  hatchet  was  Clicket's,  and 
that  it  was  in  his  possession ;  Bond,  under  some  pretext  or  other 
— what  it  is  he  has  not  been  allowed  to  show,  because,  even  if  it 
is  a  good  one,  it  would  not  justify  him  in  seizing  the  hatchet  out 
of  the  former  owner's  possession  without  his  consent.  If  he 
thinks  that  he  bought  the  hatchet  of  Clicket,  and  Clicket  is  not 
willing  to  give  it  to  him,  he  ought  not  to  take  it  by  violence,  but 
bring  an  action  in  this  court  to  recover  it. 

The  Judge.  You  can  now  proceed,  Dana,  if  you  have  any  thing 
to  say  to  the  jury. 

Dana.  Gentlemen  of  the  jury,  I  admit  what  the  counsel  says, 
that  a  boy  has  not  a  right  to  possess  himself  of  property  by  taking 
it  away  from  any  other  person  violently,  even  if  he  is  entitled  to 
it ;  but  I  maintain  that  Bond  did  not  take  this  property  away  vio 
lently.  Clicket  delivered  it  to  him — that  is,  he  gave  him  permit- 


88  STILL   ONE   THING  AT   A  TIME. 

The  charge  of  the  judge  and  the  verdict  of  the  jury. 

sion  to  take  it,  which  is  the  same  thing.  It  is  true,  at  the  time  he 
gave  it  him,  he  told  him  he  must  bring  it  back  again  after  he  had 
done  cutting  sticks  ;  but  that  was  nothing ;  for  if  the  hatchet  was 
really  Bond's,  he  was  not  bound  to  obey  any  such  direction. 
Therefore,  if  Clicket  claims  that  the  hatchet  is  his,  he  must  bring 
forward  some  other  proof  of  it  than  merely  the  fact  that  Bond  took 
it  that  day. 

The  Judge.  Gentlemen  of  the  jury,  I  think  the  question  is 
presented  to  you  very  distinctly  by  the  counsel.  The  question 
simply  is,  whether  Clicket's  telling  Bond  that  he  might  take  the 
hatchet,  but  must  bring  it  back  again,  was  such  a  delivery  of  it  as 
would  really  make  it  his  property,  even  if  he  had  previously  agreed 
to  sell  it  to  him.  It  seems  to  me  that  it  was  not.  He  allowed 
him  to  take  it  for  a  specific  purpose,  and  when  that  purpose  was 
fully  accomplished,  the  permission  would  seem  to  have  expired, 
and  the  hatchet  ought  to  be  returned.  If  Bond  claims  the  hatch 
et  as  his  for  any  other  purpose,  or  in  any  other  sense,  his  duty  was 
to  have  given  it  back  after  he  had  finished  cutting  the  wood,  and 
then  to  have  brought  an  action  in  this  court  to  compel  Clicket  to 
make  a  full  and  complete  delivery  of  it. 

The  jury  retired  after  receiving  this  charge,  and  very  soon  re 
turned  with  a  verdict  that  Bond  must  give  back  the  hatchet  to 
Clicket  until  he  can  prove  in  court  that  Clicket  really  sold  it  to 
him. 


THE    HATCHET   QUESTION    SETTLED.  89 

The  complaint  in  the  case  of  Bond  vs.  Clicket. 


VII. 

THE   HATCHET   QUESTION    SETTLED. 

Bond  against  Clicket. 

IN  this  case  the  claim  of  Bond  to  the  hatchet,  which  he  had 
seized  from  Clicket  without  right,  and  been  required  to  restore, 
was  tried  on  its  merits. 

Judge  Justin  presiding.  For  Bond,  Dana  appeared  ;  for  Click 
et,  Warner. 

The  case  was  introduced,  as  usual,  by  the  following  brief  state 
ment  of  the  plaintiff's  claim  : 

<2s  ctacm  tna£  v?ucft<e£  data  me  ntd 
<z<wct  and  d 

awe  i£  fo  me. 
? 


ne 


The  Judge.  Well,  Clicket,  what  do  you  say  to  this  ? 
Clicket.  I  say  I  did  not  sell  it  to  him. 
The  Judge.  Then  I  appoint  Otis  and  Barker  jury. 
The  jury  took  their  places  on  the  jury  bench,  and  the  trial  pro 
ceeded. 


90  THE   HATCHET   QUESTION    SETTLED. 

Moses  recounts  the  history  of  catching  the  squirrel. 

The  Judge.  It  devolves  on  you,  Dana,  as  the  counsel  for  the 
plaintiff,  to  open  the  case.  Who  is  the  first  witness  ? 

Dana.  Moses. 

The  Judge.  Come  forward,  Moses,  then,  and  give  your  evi 
dence. 

Dana.  Now,  Moses,  I  want  you  to  tell  the  jury  all  you  know  in 
respect  to  the  squirrel  that  Clicket  and  Bond  had  a  difficulty  about. 

Moses.  About  the  gray  squirrel  they  caught  on  the  other  side 
of  the  river  ? 

Dana.  Yes  ;  that  gray  squirrel. 

Moses.  Shall  I  tell  about  the  time  when  they  first  saw  him,  or 
when  they  caught  him  ? 

Dana.  Tell  us  first  about  the  time  when  they  first  saw  him. 

Moses.  Well,  the  other  day  we  went  off  together,  Bond,  and 
Clicket,  and  I — 

The  Judge.  When  was  it  ? 

Moses.  It  was  last  Saturday.  We  were  going  a  fishing  and 
raspberrying  both  together.  We  went  along  down  the  road  a  lit 
tle  way,  and  then  turned  into  the  path  that  leads  into  the  woods. 
We  followed  the  path  along  the  edge  of  the  woods,  till  at  last  we 
saw  a  horse  there,  and  Clicket  wanted  to  catch  him  and  have  a 
ride.  Bond  said  he  had  better  not,  because  he  had  not  any  sad 
dle  or  bridle.  He  said  he  could  make  any  horse  go  whichever 
way  he  pleased  by  patting  his  cheek  one  side  or  the  other  with  a 
switch. 

The  Judge.  Has  this  affair  of  the  hdrse  any  thing  to  do  with 
the  difficulty  about  the  squirrel  ? 


THE   HATCHET   QUESTION    SETTLED.  91 

Hiring  the  boat.  An  offer  to  trade.  The  trap  and  the  hatchet. 

Moses  (hesitating).  No — I  don't  know  that  it  has — any  thing 
particular  to  do  with  it. 

The  Judge.  Then  pass  it  by,  and  come  at  once  to  the  point. 

Moses.  Well,  we  went  on  till  .we  came  to  the  river,  and  we 
walked  along  on  the  bank  of  the  river  till  we  came  to  a  place 
where  a  boy  had  a  boat,  and  Clicket  and  Bond  wanted  the  boy 
to  let  them  have  the  boat  to  go  across  the  river  in.  He  said  he 
would  if  they  would  give  him  sixpence.  The  boys  talked  about 
it  some  time,  and  finally  they  paid  the  boy  sixpence  and  took  the 
boat. 

Dana.  I  want  you  to  tell  the  jury,  Moses,  what  they  said  when 
they  talked  about  it,  and  which  of  them  it  was  that  paid  the  money. 

The  Judge.  Why,  Dana,  has  this  any  thing  to  do  with  the 
squirrel  ? 

Dana.  Yes,  your  honor ;  it  is  very  important.  The  jury  will 
see  when  they  come  to  hear  what  it  is  that  I  am  going  to  prove. 

The  Judxje.  Very  well,  Moses,  go  on. 

Moses.  What  they  said  about  paying  the  expense  was  this : 
Bond  proposed  that  they  should  pay  three  cents  apiece,  but  Click 
et  said  he  had  not  any  money  ;  he  had  spent  all  his  allowance  for 
the  week.  So  Bond  offered  to  lend  him  three  cents  for  his  share ; 
but  Clicket  said  he  did  not  want  to  borrow  any  money,  because 
he  always  hated  so  much  to  pay  it  when  the  time  came.  Then 
Bond  said  that  he  would  let  him  have  three  cents  for  boot  between 
his  trap  and  Clicket's  hatchet. 

The  Judge.  What  did  he  mean  by  that  ? 

Moses.  Why,  Clicket  had  a  hatchet,  and  Bond  had  a  trap — he 


92  THE   HATCHET   QUESTION   SETTLED. 

A  bargain  in  alternative. 

had  two  traps,  in  fact,  and  he  had  been  talking  of  swapping  one 
of  them  for  Clicket's  hatchet ;  but  Clicket  was  not  quite  willing, 
and  now  Bond  offered  him  the  three  cents  to  boot. 

Dana.  And  what  did  Clicket  say  ? 

Moses.  He  said  that  it  was  not  boot  enough,  and  he  did  not 
think  he  should  be  willing  to  do  it ;  and  then  Bond  said  that  he 
would  pay  the  whole  six  cents  for  the  boat,  and  then  have  all  the 
fish  and  all  the  raspberries  that  they  got  on  the  other  side  of  the 
river ;  for  he  said  if  he  paid  all  the  expenses  of  the  boat,  he  ought 
to  have  all  the  benefit  that  they  should  get  by  going  across. 

Dana.  Very  well ;  and  what  did  Clicket  say  to  that  ? 

Moses.  He  said  he  could  not  quite  decide  which  to  do,  but  he 
would  do  one  or  the  other.  If  Bond  would  pay  the  whole  six 
pence,  so  that  they  could  have  the  boat  to  go  across,  he  would 
either  let  him  have  all  that  they  got  on  the  other  side,  or  else  he 
would  give  him  the  hatchet  for  the  trap,  without  asking  him  any 
thing  more  to  boot. 

Dana.  The  jury  will  see  now  why  I  wished  to  prove  this  con 
versation.  I  want  them  to  remember  particularly  that  Clicket 
agreed  that  if  Bond  would  hire  the  boat,  he,  that  is,  Bond,  should 
have  all  that  they  got  by  going  across,  or  else  that  he  should  have 
Clicket's  hatchet  in  exchange  for  a  certain  trap  of  his,  without 
any  other  boot. 

The  Judge.  And  did  Bond  pay  the  money  for  the  boat  ? 

Moses.  Yes,  he  paid  the  money,  and  the  boy  let  us  have  the 
boat. 

The  Judge.  Did  they  pay  the  boy  beforehand,  that  is,  when 


THE   HATCHET   QUESTION   SETTLED.  93 

The  boat  paid  for.  Warner's  interruption.  Moses's  story  continued. 

they  took  the  boat,  or  did  they  promise  to  pay  when  they  came 
back? 

Moses.  They  paid  him  beforehand.  The  boy  would  not  let 
them  have  the  boat  unless  they  paid  him  beforehand,  because,  he 
said,  he  should  not  be  there  when  they  came  back.  So  Bond  paid 
him  the  money. 

Dana.  Well,  now,  go  on  and  tell  the  jury  about  the  squirrel. 
It  is  no  matter  about  the  fishing  or  the  raspberrying.  Come  as 
quick  as  you  can  to  what  happened  about  the  squirrel. 

Jlfoses.  We  took  the  boat  and  went  across  the  river — 

Warner  (interrupting).  I  should  like  to  ask  a  question  here. 

The  Judge.  It  will  be  more  convenient  for  you  to  reserve  your 
questions  till  the  time  for  the  cross-examination  comes.  Let  Dana 
go  on  and  bring  out  all  the  facts  that  he  wants  to  prove,  and  then 
you  can  ask  any  questions  you  choose  when  the  time  comes  for 
the  cross-examination. 

Dana.  Go  on,  then,  Moses,  and  tell  about  the  squirrel. 

Moses.  We  went  across  the  river,  and  then  sailed  along  by  the 
opposite  bank  till  we  came  to  the  place  where  Clicket  thought 
there  was  a  good  chance  to  fish.  After  the  boys  had  fished  there 
a  while,  they  sent  me  into  the  edge  of  the  woods,  by  the  side  of 
the  hill,  to  see  if  there  were  any  raspberries  there.  I  found  a 
place  where  the  raspberries  were  pretty  thick.  So  I  called  them, 
and  they  laid  down  their  fishing-poles  on  a  bank  and  came.  We 
staid  some  time  among  the  bushes.  At  last  Clicket  and  I,  who 
were  pretty  near  together,  heard  Bond  calling  us  to  come  there 
quick,  as  if  he  had  found  something.  We  ran  as  fast  as  we  could, 

•» 


94  THE   HATCHET   QUESTION    SETTLED. 

The  boys  meet  a  gray  squirrel  in  the  woods. 

and  when  we  got  there,  we  asked  him  what  it  was.  He  said  it 
was  a  large  gray  squirrel,  and  he  showed  us  a  log  among  the  bush 
es  that  the  squirrel  had  run  under.  Bond  said  he  had  no  doubt 
but  that  he  had  a  hole  there.  While  we  were  looking  at  the  place 
where  Bond  said  the  squirrel  had  gone  down,  and  were  watching 
to  see  whether  he  would  come  out  again,  suddenly  Clicket  saw 
him  on  the  other  end  of  the  log. 

Dana.  And  what  did  you  do  then  ? 

Moses.  Clicket  told  us  all  to  keep  still  and  see  where  he  would 
go.  He  said  we  would  watch  and  see  where  he  would  go,  and  so 
find  out  where  his  hole  was,  and  then  set  a  trap  for  him. 

The  Judge.  It  was  Clicket,  was  it,  who  made  that  proposition 
first? 

Moses.  Yes ;  he  said  it  in  a  whisper,  so  as  not  to  frighten  the 
squirrel.  The  squirrel  looked  at  us  a  minute,  and  then  ran  up  the 
stem  of  a  little  tree  till  he  reached  one  of  the  branches,  and  then 
jumped  across  to  a  large  rock  that  was  near.  When  he  got  to 
the  top  of  the  rock  he  turned  round  and  looked  at  us  again. 

Dana.  Very  well ;  and  what  did  you  do  ? 

Moses.  We  crept  along  after  him  so  as  to  watch  him,  but  we 
took  care  not  to  go  too  near.  Presently  he  ran  down  off  the  rock 
on  the  ether  side  to  the  end  of  another  log,  and  he  ran  along  the 
log  till  he  came  to  a  fence.  {Turning  to  the  judge.}  Shall  I  tell 
them  all  the  places  he  went  to? 

The  Judge.  Oh  no,  that  is  not  necessary.  Tell  us  what  the 
end  of  it  was. 

Moses.  Well,  the  end  of  it  was  that  he  went  to  his  hole.     His 

I 


THE   HATCHET   QUESTION   SETTLED.  95 

To  whom  does  a  squirrel  belong,  the  boy  that  sees  him  first  or  the  boy  that  catches  him. 

hole  was  in  an  old  tree.     There  was  a  hole  in  the  tree  up  some 
way  from  the  ground. 

Dana.  Well,  what  happened  then  ? 

Moses.  Why,  Bond  said  he  meant  to  come  and  set  a  trap  for 
him,  and  he  told  Clicket  to  remember  it  was  his  squirrel. 

The  Judge.  What  did  Clicket  say  to  that  ? 

Moses.  He  told  Bond  that  it  was  not  his  squirrel.  It  is  not 
your  squirrel,  said  he,  any  more  than  it  is  mine. 

Dana.  What  did  Bond  say  to  that  ? 

Moses.  He  said  it  was  his,  because  he  saw  him  first. 

Warner.  And  what  did  Clicket  say  to  that  ? 

Moses.  He  said  that  squirrels  in  the  woods  did  not  belong  to 
those  that  saw  them  first,  but  to  those  that  caught  them.  Well, 
says  Bond,  I  am  going  to  catch  him.  Clicket  then  said  that 
Bond  might  catch  him  if  he  could,  and  if  he  did,  the  squirrel 
would  be  his. 

The  Judge.  And  is  that  all  about  it  ? 

Moses.  Yes,  that  is  all  that  happened  then.  We  staid  there 
some  time  watching  for  the  squirrel,  but  he  did  not  come  out ;  so, 
after  a  while,  we  came  back  to  the  river  again,  and  took  the  boat 
and  came  home. 

The  Judge.  Is  this  all  you  have  to  prove  by  this  witness,  Dana  ? 

Dana.  Yes,  that  is  all. 

The  Judge.  Now,  Warner,  if  you  wish  to  cross-examine  the 
witness,  you  can. 

Warner.  You  say,  Moses,  that  one  of  the  agreements  proposed 
to  be  made  was  that  Bond,  in  consideration  of  his  paying  the 


96  THE   HATCHET   QUESTION   SETTLED. 

The  bargain  between  the  boys.  Barker  is  called. 

whole  sixpence,  was  to  have  all  the  fish  and  all  the  raspberries 
that  they  should  get  on  the  other  side. 

Moses.  Yes,  that  was  one  of  the  plans. 

Warner.  Was  any  thing  said  about  his  having  any  thing  else 
besides  the  raspberries  and  the  fishes  ? 

Moses.  No,  there  was  not  any  thing  else  mentioned,  because 
we  did  not  expect  to  get  any  thing  else. 

The  Judge.  What  was  the  exact  agreement,  Moses  ?  Was  it 
for  the  raspberries  and  fishes,  or  was  it  for  all  you  should  get, 
whatever  it  might  be  ?  What  was  the  precise  language  ? 

Moses.  One  time  they  said  raspberries  and  fishes,  and  another 
time  they  said  all  that  they  should  get. 

Warner.  Did  Bond  have  all  the  raspberries  and  the  fishes  that 
were  got  ? 

Moses.  Why,  we  did  not  get  any. 

Warner.  Did  not  get  any  ? 

Moses.  No,  not  to  bring  home.  We  did  not  catch  any  fishes 
at  all,  and  all  the  raspberries  we  got  we  ate  up  there. 

Warner.  Very  well.     That  is  all  I  have  to  ask. 

The  Judge.  Have  you  any  more  questions  to  ask,  Dana  ? 

Dana.  No,  not  of  this  witness.     My  next  witness  is  Barker. 

Barker  was  here  called  forward,  and  was  examined  as  follows : 

Dana.  Tell  the  jury,  Barker,  about  Clicket's  catching  the 
squirrel. 

Barker.  Saturday  night  Clicket  told  me  that  he  and  Bond  had 
seen  a  squirrel  in  the  woods,  and  that  they  were  both  going  to  set 
traps  for  it,  and  he  wanted  me  to  help  him  set  his  trap.  I  told 


THE    HATCHET    QUESTION   SETTLED.  97 

Barker's  account  of  setting  the  trap  for  the  gray  squirrel. 

him  he  had  not  got  any  trap.  He  said  that  he  had  a  trap  of 
Bond's  that  he  was  talking  of  buying  of  him.  He  was  going  to 
give  him  his  hatchet  for  it,  he  said. 

The  Judge.  Did  he  say  positively  that  he  was  going  to  do  it  ? 

Barker.  He  said  he  was  going  to  do  it,  or  was  thinking  of  it, 
or  something  of  ihat  kind.  I  don't  think  he  said  that  he  had 
fully  decided  upon  it.  However,  he  had  the  trap  in  his  posses 
sion,  and  he  wanted  me  to  help  him  mend  it,  and  then  go  with  it 
on  Monday  morning  and  help  him  set  it ;  and  he  asked  me  not  to 
tell  Bond  any  thing  about  our  going. 

Dana.  And  did  you  think  it  was  fair  to  go  secretly  in  that 
way  and  catch  the  squirrel  away  from  Bond  ? 

Barker.  I  did  not  think  much  about  it,  but  I  did  not  suppose 
there  was  any  thing  unfair  in  it.  I  understood  that  they  both 
saw  the  squirrel  together,  and  that  either  of  them  had  a  right  to 
catch  him,  whichever  could  get  his  trap  set  first. 

Dana.  Very  well.     Go  on  with  your  account.  « 

Barker.  I  helped  Clicket  mend  the  trap,  and  put  it  all  in  good 
order  on  Saturday  night.  Monday  morning  early  we  went  off  to 
set  it. 

The  Judge.  How  did  you  get  across  the  river  ? 

Barker.  We  went  round  by  the  bridge.  Clicket  said  we  had 
better  go  that  way,  although  it  was  a  little  farther,  because  he 
thought  it  was  doubtful  whether  we  could  get  a  boat.  We  started 
very  early,  before  any  of  the  boys  were  up,  so  as  to  get  back  be 
fore  breakfast.  Clicket  had  some  trouble  in  finding  the  place,  but 
at  last  he  found  it,  and  we  set  the  trap.  At  noon  we  went  to  see 

31  G 


THE    HATCHET   QUESTION   SETTLED. 


The  squirrel  caught  Clicket  does  not  want  the  trap. 

if  we  had  caught  the  squirrel,  and  we  found  that  we  had  ;  so  we 
took  him  in  the  trap  and  brought  him  up  home.  On  the  way 
home  we  met  Bond  and  another  boy  going  down  with  another  trap, 
which  he  was  carrying  to  set  for  the  squirrel. 

Dana.  What  did  Bond  say  to  you  ? 

Barker.  He  said  we  had  no  right  to  catch  that  squirrel,  for  it 
was  his  ;  and  Clicket  told  him  it  was  not  his  unless  he  caught  it. 

Dana.  That  is  all  I  have  to  ask  of  this  witness. 

The  Judge.  What  became  of  the  squirrel  finally  ? 

Barker.  Clicket  and  I  kept  him  a  day  or  two,  when  he  got  away. 

Dana.  I  have  one  question  more  to  ask.  While  you  and  Click 
et  had  the  squirrel,  did  Bond  ever  claim  him  as  his  ? 

Barker.  Yes,  he  claimed  him  several  times. 

The  Judge.  On  what  ground  did  he  claim  him  ? 

Barker.  Why,  he  said  that  he  saw  him  first  and  was  going  to 
set  a  trap  for  him  ;  and,  besides  tliat,  Clicket  had  agreed  that  if 
he  would  pay  the  sixpence,  he  should  have  all  that  they  got  by 
going  across  the  river. 

Warner.  What  did  Clicket  say  to  that  ? 

Barker.  He  said  they  did  not  get  the  squirrel  by  going  across 
the  river.  They  only  saw  him  ;  but  Bond  said  that  that  was  what 
led  to  taking  him,  and  that  he  was  entitled  to  all  the  advantages 
they  got  by  going  across  the  river,  and  this  was  one  of  them,  and 
that  if  Clicket  would  not  let  him  have  the  squirrel,  he  was  bound 
to  give  him  his  hatchet  in  exchange  for  the  trap.  Clicket  said  lie 
did  not  want  the  trap. 

The  Judge.  And  so  they  could  not  agree  ? 


100  THE    HATCHET    QUESTION    SETTLED. 

Murray  tells  the  jury  what  was  done  with  the  trap. 

Barker.  No,  they  could  not  agree  at  all. 

The  Judge.  Is  this  your  last  witness,  Dana  ? 

Dana.  No,  I  have  one  more.     It  is  Murray. 

The  Judge.  What  do  you  intend  to  prove  by  Murray  ? 

Dana.  I  want  to  show  the  jury  what  became  of  the  trap. 

The  Judge.  Very  well.  Come  forward,  Murray,  and  answer 
the  questions. 

Dana.  Do  you  know  of  Clicket's  having  a  trap  that  belonged 
to  Bond  ? 

Murray.  Yes,  I  saw  him  bringing  it  back  from  the  woods,  with 
a  gray  squirrel  inside  of  it. 

Dana.  What  became  of  the  trap  ? 

Murray.  When  the  squirrel  had  been  taken  out  and  put  in  a 
cage,  Clicket  gave  the  trap  back  to  Bond,  but  he  would  not  take  it. 

Dana.  Why  would  not  he  take  it  ? 

Murray.  He  said  it  was  not  his  any  longer.  He  said  that 
Clicket  must  keep  the  trap  and  give  him  his  hatchet. 

Dana.  And  what  did  Clicket  say  to  this  ? 

Murray.  He  said  that  Bond  might  take  the  trap  or  not,  just  as 
he  pleased,  but  that  he  should  not  give  him  his  hatchet  for  it,  for 
the  hatchet  was  worth  more. 

Dana.  That  is  all,  and  I  have  no  more  witnesses  to  examine. 

The  Judge.  Now,  Warner,  it  is  your  turn.  If  you  have  any 
witnesses,  you  can  bring  them  forward. 

Warner.  I  wish  to  call  Murray. 

Dana.  I  should  like  to  know,  your  honor,  what  he  is  going  to 
prove. 


THE   HATCHET   QUESTION   SETTLED.  101 

What  is  the  general  custom  of  boys  as  to  ownership  of  squirrels. 

Warner.  I  want  to  prove  that  a  boy  has  no  right  to  a  squirrel, 
or  any  thing  else  that  he  sees  in  the  woods,  merely  because  he 
sees  him,  but  that  such  things  belong  to  those  that  catch  them. 

Dana.  But  he  can't  prove  that.  That  is  not  a  fact  to  be  proved 
by  a  witness — it  is  matter  of  opinion.  That  is  something  for  the 
jury  to  determine.  Homer  may  think  that  that  is  true,  and  an 
other  boy  might  think  differently.  I  object  to  having  him  exam 
ined  on  such  a  point  at  all. 

Warner.  What  I  am  going  to  prove  is  not  Homer's  opinion  on 
the  point,  but  what  the  general  practice  is  in  regard  to  it  among 
boys.  If  I  were  going  to  ask  Homer  whether  or  not  he  thought 
that  a  boy  was  entitled  to  have  a  fair  chance  to  catch  a  squirrel 
that  he  saw  first  in  the  woods,  then  I  admit  that  the  objection  on 
the  other  side  would  be  a  good  one.  But  I  am  not  going  to  ask 
him  what  he  thinks  about  the  point  at  all,  but  what  the  establish 
ed  custom  is  among  boys  ;  and  that's  a  matter  of  fact,  which  I  can 
prove  by  a  witness,  like  any  other  fact. 

Dana.  No ;  it  is  a  matter  of  opinion  after  all,  and  I  object  to 
having  the  witness  testify. 

Warner.  Then  the  judge  must  decide  between  us  whether  he 
shall  testify  or  not. 

The  Judge.  I  think  the  witness  may  be  examined,  provided 
Warner  confines  his  questions  to  the  subject  of  the  practice  estab 
lished  among  boys.  The  existence  of  a  practice  is  a  fact  that  may 
be  proved,  like  the  existence  of  a  horse,  or  of  a  man,  or  like  any 
other  fact.  People  may  have  various  opinions  about  the  practice 
as  to  whether  it  is  right  or  not,  and  those  opinions  we  have  noth- 


102  THE   HATCHET   QUESTION   SETTLED. 

What  Murray  thought  about  it. 

ing  to  do  with ;  but  Warner  has  a  right  to  show  that  the  practice 
itself  exists  if  he  pleases. 

Warner.  Tell  the  jury,  then,  Murray,  what  the  custom  is  among 
boys  in  regard  to  squirrels,  and  such  animals  that  they  find  in  the 
woods.  Has  a  boy  any  particular  right  to  such  an  animal  just 
because  he  sees  him  first  ? 

Murray.  No ;  he  belongs  to  the  one  that  catches  him. 

Warner.  Suppose  a  dozen  boys  were  in  the  woods,  and  one  of 
them  should  see  a  rabbit,  and  they  should  all  run  after  him,  and 
another  boy,  not  the  one  that  first  saw  him,  should  catch  him, 
which  of  them  do  you  think  the  rabbit  would  belong  to  ? 

Dana.  There,  you  see  that  he  is  asking  him  for  his  opinion. 

Warner.  I  don't  wish  you  to  give  your  opinion,  Murray,  as  to 
which  you  think  he  ought  to  belong  to,  but  which  he  would  actu 
ally  belong  to,  according  to  the  established  custom  among  boys 
in  such  cases. 

Murray.  He  would  belong  to  the  boy  that  caught  him. 

Warner.  And  so  suppose  two  boys  were  fishing  on  the  bank  of 
a  river,  and  that  one  of  them  should  see  a  fish  swimming  in  the 
water,  and  the  other  should  put  in  his  hook  and  line  and  catch 
him,  which  of  them,  according  to  the  established  custom  among 
boys,  would  be  entitled  to  claim  the  fish  ? 

Murray.  Certainly  the  one  that  caught  him. 

Warner.  Very  well.     That  is  all  that  I  wish  to  ask. 

The  Judge.  Then  we  have  done  with  this  witness,  I  suppose  ? 

J)ana.  No,  your  honor,  I  wish  to  ask  him  a  question  or  two. 
Suppose,  Murray,  that  two  boys  were  fishing  on  the  bank  of  a  riv- 


THE    HATCHET   QUESTION   SETTLED.  103 

Interferences  among  boys.  Fair  or  unfair? 

er,  and  one  of  them  should  see  a  fish  swimming  in  the  water,  and 
should  tell  the  others  of  it,  and  say  that  he  was  going  to  catch 
Jiim,  would  it  be  considered  fair,  according  to  the  established  cus 
tom  among  boys  in  such  cases,  that  another  boy  should  run  up  to 
the  place  and  put  his  line  in,  and  so  catch  the  fish  away  from  the 
boy  who  first  saw  him  ? 

Murray.  IVe  seen  boys  do  so. 

Dana.  Yes-,  no  doubt ;  and  were  they  considered  by  the  other 
boys  as  acting  right  or  wrong  ? 

Murray  (smiling).  I  should  not  exactly  like  to  do  it  myself. 

The  Judge.  But  that  is  not  the  question,  Murray.  The  ques 
tion  is  not  what  you  would  or  would  not  be  willing  to  do  your 
self,  but  what  would  be  deemed  right,  according  to  the  established 
usages  and  customs  of  boys.  It  is  a  question  of  custom. 

Murray.  I  think  the  boys  would  generally  consider  it  unfair. 

The  Judge.  Then  it  is  considered  that,  if  a  boy  sees  a  fish  and 
announces  his  intention  to  try  and  catch  him,  he  has  a  right  to  a 
fair  chance,  without  any  other  boys  interfering. 

Murray.  Yes,  I  think  that  is  the  custom. 

Dana.  And,  in  the  same  manner,  if  a  boy  sees  a  squirrel  in  the 
woods,  and  announces  his  intention  to  try  to  catch  him,  do  you 
think  that  any  other  boy  has  a  right  to  interfere  and  catch  the 
squirrel  away  from  him  ? 

The  Judge.  We  don't  want  your  own  individual  opinion  about 
it,  but  what  is  the  common  understanding  and  practice  among  boys? 

Murray.  I  think  the  common  understanding  is  that  it  is  not 
fair  for  the  other  boys  to  interfere. 


104  THE    HATCHET    QUESTION    SETTLED. 

Dana's  argument  before  the  jury. 

Dana.  That  is  all  that  I  have  to  ask. 

The  Judge.  Very  well ;  and  now,  Dana,  what  have  you  to  say 
before  the  case  goes  to  the  jury  ? 

Dana  (addressing  the  jury).  Gentlemen  of  the  jury,  what  I 
claim  in  behalf  of  my  client  is  that  Clicket  sold  him  his  hatchet, 
and  that,  consequently,  he  ought  to  deliver  it  to  him. 

There  has  already  been  one  trial  growing  out  of  this  affair,  but 
in  that  case  the  point  was  entirely  different  from  the  one  that  is 
raised  now,  so  that  you  must  not  let  the  decision  which  was  ren 
dered  then  affect  your  opinion  on  the  present  question.  In  that 
case,  Bond  took  the  hatchet  from  a  stump  and  claimed  that  Click 
et  had  delivered  it  to  him.  The  jury  decided  that  Clicket  had  not 
then  delivered  it  to  him,  and  that  Bond  had  no  right  to  seize  it. 
If  Clicket  refused  to  give  it  up,  Bond,  instead  of  taking  it,  was 
bound,  the  judge  said,  to  bring  an  action  in  this  court,  to  have  it 
decided  whether  Clicket  ought  to  give  it  up  or  not.  That  is  the 
action  which  he  brings  now. 

I  maintain  that  Clicket  is  bound  to  give  up  the  hatchet  on  one 
or  the  other  of  two  grounds,  and  he  may  take  his  choice  of  them. 
You  will  recollect  that  when  the  boys  went  down  to  the  river,  and 
wished  to  cross  in  a  boat,  Clicket  had  np  money,  and  so  Bond  fur 
nished  the  whole  amount  necessary  for  the  hire  of  the  boat.  Ho 
did  not  intend  this  as  a  gift,  however.  There  was  an  express  bar 
gain  about  it,  by  which  Clicket  was,  in  some  way  or  other,  to  make 
a  compensation  to  Bond  for  his  share. 

He  agreed  to  do  one  of  two  things :  either  he  was  to  exchange 
his  hatchet  for  Bond's  trap,  and  receive  the  three  cents,  which  was 


THE    HATCHET    QUESTION    SETTLED.  105 

An  interruption.  The  judge  is  appealed  to. 

his  half  of  the  boat-hire,  as  the  boot,  or  else  he  was  to  let  him 
have  all  the  advantages  that  should  result  from  using  the  boat  in 
going  across  the  river. 

Warner  (correcting  Mm).  All  the  fishes  and  all  the  raspberries 
that  they  should  get. 

Dana.  No ;  the  agreement  was  for  every  thing  that  they  should 
get,  whatever  it-  might  be.  It  included  all  the  benefits  of  every 
kind  which  should  result  from  the  excursion. 

Warner.  But  I  maintain,  may  it  please  your  honor,  that  the 
agreement  was  only  for  the  fishes  and  the  raspberries. 

Dana.  The  judge  must  say,  then,  which  it  was. 

The  Judge.  According  to  my  recollection  of  the  testimony  of 
.the  witness,  he  said  that  both  expressions  were  used.  At  one 
time  the  language  was  all  the  fishes  and  all  the  raspberries,  and 
at  another,  all  that  they  should  get,  without  any  limitation  in  re 
spect  to  the  articles. 

Dana.  Yes.  They  specified  at  one  time  raspberries  and  fishes, 
because  those  were  the  principal  things  that  they  expected  to  ob 
tain  ;  indeed,  perhaps  they  were  the  only  things  that  they  expect 
ed  to  obtain ;  but  still  the  agreement,  in  its  real  intent  and  mean 
ing,  was  wider,  and  included  every  thing,  as  by  right  it  ought  to. 

The  bargain  being  thus  made,  Clicket  was  bound  to  execute  it 
in  one  or  the  other  of  the  two  forms.  If  he  decided  to  consider 
his  share  of  the  boat-hire  which  Bond  paid  for  him  as  boot  be 
tween  the  hatchet  and  the  trap,  then  he  was  bound  to  deliver  the 
hatchet,  for  he  received  the  trap,  and  he  was  paid  the  boot.  If, 
on  the  contrary,  he  concluded  not  to  make  that  bargain,  then  he 


106  THE   HATCHET   QUESTION    SETTLED. 

Conclusion  of  Dana's  speech.  Commencement  of  Warner's. 

was  bound  to  give  up  to  Bond  all  the  benefits  that  resulted  from 
the  excursion,  and  the  taking  of  the  squirrel  was  one.  Indeed,  it 
was  the  only  one,  for  the  excursion  proved  to  be  a  failure,  so  far 
as  raspberries  and  fishes  were  concerned. 

Now  I  admit  that  Clicket  had  his  choice  between  these  alterna 
tives.  He  might  have  accepted  whichever  he  pleased.  Virtually 
he  did  make  his  choice,  for  he  went  over  and  caught  the  squirrel, 
thus  appropriating  to  himself  the  chief,  and,  indeed,  the  only  ben 
efit  which  resulted  from  the  excursion.  And  now  it  is  too  late 
for  him  to  restore  the  squirrel,  since  the  little  rogue  has  got  away. 
There  is  nothing  left,  then,  for  him  but  to  fulfill  the  other  branch 
of  the  alternative,  namely,  allow  the  three  cents  to  be  reckoned  as 
boot  between  the  hatchet  and  the  trap,  and  so  keep  the  trap  and 
give  up  the  hatchet. 

In  a  word,  he  agreed  to  do  one  of  two  things.  He  has  inca 
pacitated  himself  from  doing  one  of  them.  Of  course,  he  is  bound 
to  do  the  other. 

Here  Dana  took  his  seat,  and  the  judge  called  upon  Warner  to 
address  the  jury,  if  he  had  any  thing  to  say  on  the  other  side. 
Warner  accordingly  addressed  the  jury  as  follows : 
Warner.  Gentlemen  of  the  jury,  what  I  have  to  say  is  just  this. 
I  admit  that  my  client  made  the  agreement  that  he  would  do  one 
of  two  things  in  regard  to  the  three  cents  that  Bond  paid  for  him 
in  hiring  the  boat,  but  I  maintain  that  he  has  done  one  of  the  two 
things,  namely,  he  let  Bond  have  all  the  fishes  and  all  the  rasp 
berries  that  they  got  by  going  across  the  river.     That  is  all  that 


THE   HATCHET   QUESTION   SETTLED.  107 

End  of  the  argument  in  Bond  against  Clicket. 

he  agreed  to  do.  He  did  not  agree  to  let  him  have  any  squirrels 
that  they  might  catch ;  still  less  did  he  agree  that  Clicket  should 
have  the  exclusive  right  to  catch  all  that  they  might  see.  It  is 
true  that  one  of  the  forms  of  the  agreement  was  that  Bond  should 
have  all  that  they-  should  get  by  going  across  the  river ;  but  the 
witness  says  expressly  that  what  they  meant  by  that  was  only 
the  raspberries  and  the  fishes.  They  did  not  expect  to  get  any 
thing  else,  and  so  I  contend  that  nothing  else  was  included  in  the 
agreement. 

Now  Bond  has  had  all  the  fishes  and  all  the  raspberries  that 
they  got.  It  is  true,  they  did  not  get  any — that  is,  they  did  not 
catch  any  fishes,  and  all  the  raspberries  that  they  gathered  they 
ate  up  on  the  spot.  But  it  was  not  my  client's  fault  that  the  ex 
pedition  resulted  in  so  little.  Bond  took  his  chance  in  respect  to 
that,  and  now  he  can  not  complain. 

The  amount  of  it  is,  as  I  understand  it,  that  my  client  was  to 
wait  until  after  the  expedition  was  ended,  and  then  he  was  to 
choose  whether  he  would  give  up  all  that  was  got  by  the  expedi 
tion  to  Bond  in  consideration  of  his  having  paid  for  the  boat,  or 
whether  he  would  have  his  share  of  the  fruits  of  the  expedition, 
and  so  pay  for  his  share  of  the  boat  by  allowing  for  the  amount 
in  a  trade  between  the  trap  and  the  hatchet.  He  accordingly  wait 
ed  to  see  what  the  result  of  the  expedition  would  be ;  and  when  he 
ascertained  that  point,  he  decided  to  give  up  the  avails  of  it  to 
Bond,  and  not  make  the  trade  for  the  hatchet.  This,  it  seems  to 
me,  he  had  a  perfect  right  to  do. 

And  that  is  all  that  I  have  to  say,  only  that  the  squirrel  was 


108  THE   HATCHET   QUESTION   SETTLED. 

Judge  Justin's  charge.  The  verdict  rendered. 

not  a  part  of  what  was  got  by  the  excursion,  for  he  was  not  caught 
till  the  next  Monday  morning. 

The  Judge.  Gentlemen  of  the  jury,  the  point  in  this  case  seems 
to  be  whether  the  right  to  set  a  trap  for  the  squirrel,  and  the 
chance  of  catching  him,  was  one  of  the  advantages  that  was  in 
cluded  in  the  bargain  between  the  boys  as  a  part  of  "  what  was 
got"  by  the  excursion  across  the  river.  I  have  nothing  to  say  on 
the  point  in  addition  to  the  arguments  svhich  have  been  adduced 
by  the  counsel  of  the  parties.  You  have  heard  their  arguments, 
and  it  is  for  you  to  decide  between  them. 

The  jury  now  retired  to  consider  their  verdict.  They  were  out 
rather  longer  than  usual.  When  they  returned  they  said  that 
they  were  agreed  on  the  verdict,  which  was,  that  Clicket  must 
either  give  Bond  the  hatchet,  or  else  catch  the  squirrel  for  him 
again,  and  that  he  should  be  allowed  three  days  to  catch  him. 


CONFESSION.  109 


Murray  vs.  Sparks.  .  The  accusation  IB  read. 


VHI. 

CONFESSION. 

Murray  against  Sparks. 

JUDGE  JUSTIN  presided.     For  Murray,  Colman  appeared  as 
counsel  ;  for  Sparks,  Dana. 

The  case  was  introduced  by  the  following  brief  statement,  pre 
pared  by  the  counsel  for  the  plaintiff,  and  read  by  the  clerk  : 


accuse      siaznd  &       nttwtnd  mu  ca/?> 

<r 
e    i&afat  uedfotaau  a/fatncon.,  ana  (2s 

&  </     & 

ciatm  tnat  we  dn&aia  Siau  me  fan  cenfa  aam= 
aaed  /ot  t£.  Q/ianea.  &/utttau. 

f        /  <7  </ 

The  Judge.  Well,  Sparks,  what  do  you  say  to  this  charge  ? 

Sparks.  I  say  I  did  not  throw  his  cap  into  the  water. 

The  Judge.  Then  I  will  appoint  a  jury  to  try  the  case.  I  ap 
point  Clicket  and  Carleton.  Come  forward,  gentlemen  of  the  jury, 
and  take  your  places. 

The  jury  came  forward  and  took  their  places  on  the  jury  bench, 
and  then  the  judge  called  upon  the  counsel  for  the  plaintiff  to 
proceed. 


110  CONFESSION. 


The  confession  of  the  defendant  offered  as  evidence  against  him. 

Colman.  Gentlemen  of  the  jury,  this  case  you  will  find  a  very 
simple  one,  and  I  think  it  will  be  very  easily  decided.  The  evi 
dence  against  Sparks  is  his  own  confession ;  and  what  better  pos 
sible  evidence  can  there  be  against  a  person  than  that  ?  I  shall 
prove  to  you  that  my  client's  cap  was  thrown  into  the  water  from 
off  a  high  bank.  I  shall  prove,  moreover,  that  Sparks  acknowl 
edged  that  he  was  the  one  that  threw  it  in.  I  shall  also  prove 
that  the  injury  to  the  cap,  and  the  inconvenience  and  trouble  that 
my  client  was  put  to  in  recovering  it  and  drying  it,  entitle  him 
fully  to  the  damages  that  he  claims,  which  is  ten  cents. 

My  first  witness  is  King. 

The  Judge.  Come  forward,  King,  and  take  your  place  upon  the 
witness  stand. 

So  King  came  forward,  and  was  examined  as  follows : 

Colman.  Were  you  with  the  boys,  King,  yesterday  afternoon, 
when  Murray's  cap  was  thrown  in  the  water  ? 

King.  I  was  there  when  it  got  into  the  water. 

Colman.  Then  tell  the  jury  about  it.  Where  were  the  boys, 
and  what  were  they  doing? 

King.  Why,  we  were  all  playing  down  by  the  pond,  and  Mur 
ray  had  a  little  vessel  that  he  was  rigging ;  and  after  a  while  we 
went  up  on  the  top  of  the  bank,  and  sat  down  under  a  tree ;  Mur 
ray  took  his  cap  off,  because  it  was  warm,  and  put  it  down  by  the 
side  of  him. 

Colman.  What  sort  of  a  place  was  it  where  you  were  ? 

King.  It  was  a  place  where  the  bank  was  steep  and  rocky. 
We  went  up  there  because  it  was  high,  and  we  thought  there 


CONFESSION.  Ill 


How  Murray,  rigging  his  vessel,  found  his  cap  in  the  brook. 


would  be  more  breeze  there.  Besides,  there  was  a  tree  there 
which  made  a  shade. 

Colman.  Well,  proceed. 

King.  After  a  while,  Murray  finished  rigging  his  vessel,  and 
then  he  got  up  to  come  away,  and  he  looked  around  for  his  cap, 
but  he  could  not  find  it.  Pretty  soon  he  looked  over  the  bank, 
and  there  he  saw  it  in  the  water.  It  was  slowly  floating  away. 

Colman.  And  what  did  he  do  then  ? 

King.  He  ran  down  to  the  shore  by  a  sort  of  path  there  was 
behind  the  tree,  and  there  he  saw  a  string  like  a  kite-string  lying 
along  on  the  water  from  his  cap  to  the  shore.  So  he  took  hold 
of  this  string  and  pulled  his  cap  in.  Then  he  poured  the  water 
out  of  it,  and  came  running  up  the  bank  again,  demanding  who  it 
was  that  threw  his  cap  into  the  water. 

Colman.  And  what  did  the  boys  say  ? 

King.  They  all  laughed,  and  ran  off  in  different  directions,  and 
Murray  ran  after  them. 

Colman.  And  did  you  hear  Sparks  acknowledge  that  he  threw 
the  cap  into  the  water  ? 

King.  No,  I  don't  remember  that  I  heard  Sparks  particularly. 
There  was  a  good  deal  of  noise  and  confusion,  so  that  I  did  not 
hear  the  particular  voices. 

Colman.  Very  well.  That  is  all.  You  may  go.  My  next 
witness  is  Erskine.  Come  forward,  Erskine,  and  give  your  testi 
mony. 

Erskine,  who  was  quite  a  small  boy,  now  came  forward,  and 
was  questioned  as  follows : 


112  CONFESSION. 


The  confession  proved.  Damages. 

Caiman.  Were  you  with  the  boys  yesterday  afternoon,  on  the 
bank  by  the  brook,  at  the  time  that  Murray's  cap  was  thrown  into 
the  water  ? 

Erskine.  Yes,  I  was. 

Colman.  Did  you  hear  Sparks  acknowledge  that  he  was  the  one 
that  threw  it  in  ? 

Erskine.  He  did  not  say  he  threw  it  in ;  he  said  he  dropped 
it  in. 

Colman.  Well,  that's  the  same  thing. 

The  Judge.  Did  he  say  distinctly  and  plainly  that  it  was  he 
that  dropped  the  cap  into  the  water? 

Erskine.  Yes.  Murray  came  running  up  the  bank,  and  asking 
who  dropped  his  cap  into  the  water,  and  Sparks  kept  saying  I  did 
it,  I  did  it. 

Colman.  Very  well ;  that  is  enough.  You  will  observe,  gen 
tlemen  of  the  jury,  that  I  have  now  proved  that  the  cap  was 
thrown  or  dropped  into  the  water,  and  that  Sparks  acknowledged 
on  the  spot  that  it  was  he  that  did  it.  There  can  not  pos 
sibly  be  any  better  evidence  against  any  body  than  his  own  con 
fession.  I  shall  now  prove  how  much  damage  was  done,  and 
how  much  trouble  my  client  was  put  to  in  consequence  of  the 
wetting  of  the  cap,  and  then  my  case  will  be  closed.  I  wish  to 
call  Dummer. 

Here  Erskine  retired  from  the  witness  stand,  and  Dummer,  a 
boy  somewhat  larger,  came  forward  and  took  his  place. 

Colman.  Were  you  with  the  boys  at  the  brook,  Dummer,  when 
Murray's  cap  was  thrown  into  the  water  ? 


CONFESSION.  113 


Dummer's  conversation  with  Murray  about  the  wet  cap. 


Dummer.  No,  I  was  not  there  at  the  time,  but  I  met  Murray 
afterward,  when  he  was  coming  up  to  the  house. 

Colman.  Very  well ;  give  the  jury  an  account  of  what  took 
place  when  you  met  him. 

Dummer.  I  was  playing  out  on  the  grounds,  and  I  saw  Mur 
ray  coming  along  with  his  vessel  in  one  hand  and  his  cap  in  the 
other,  and  nothing  on  his  head.  So  I  called  him  to  stop,  and  I 
ran  over  to  where  he  was.  I  called  to  him  to  stop  partly  because 
I  wanted  to  see  his  vessel,  and  partly  to  know  what  the  matter 
was  why  he  did  not  wear  his  cap.  I  saw  that  something  was  the 
matter. 

Colman.  Well,  proceed. 

Dummer.  When  I  got  up  to  him,  I  found  that  his  cap  was 
drenching  wet,  and  he  told  me  that  some  of  the  boys  had  thrown 
it  into  the  brook. 

Colman.  Did  he  seem  to  be  angry  about  it  ? 

Dummer.  Oh  no,  not  at  all ;  he  laughed  about  it ;  and  he  said 
that  he  was  going  to  bring  some  of  them  to  trial.  He  said  he 
was  going  to  bring  Sparks  to  trial,  or  Hardy,  he  did  not  know  cer 
tainly  which. 

Colman.  Did  you  look  at  the  cap  ? 

Dummer.  Yes,  I  took  it  in  my  hand.  It  was  wet  through  and 
through. 

Colman  (holding  up  a  cap  to  the  witness).  Is  this  the  cap  ? 

Dummer.  Yes,  that  is  the  very  one. 

Colman.  You  see,  gentlemen  of  the  jury,  that  it  is  quite  a  good 
cap,  though  not  entirely  new. 

31  H 


114  CONFESSION. 


The  cap  produced  in  court.  The  confession  denied. 

Here  there  was  a  general  laugh  in  the  court  and  among  the 
spectators,  as  it  was  plain  that  the  cap  was  nearly  worn  out. 

Colman.  I  admit,  gentlemen  of  the  jury,  that  the  cap  is  not 
entirely  new ;  still,  as  boys'  caps  go,  this  one  is  by  no  means  to 
be  despised.  And  now,  Dummer,  tell  the  jury  about  the  trouble 
Murray  had  with  his  cap,  in  getting  it  dry  and  ready  for  use 
again. 

Dummer.  Why,  he  carried  it  into  the  house  and  hung  it  by 
the  kitchen  fire,  and  then  went  up  and  got  another  cap  out  of  his 
room.  It  took  all  night  to  dry ;  indeed,  it  was  damp  a  little  on 
one  side  this  morning. 

Colman.  That  is  all;  I  have  not  any  more  witnesses  to  ex 
amine  at  present. 

The  Judge.  Now,  Dana,  you  can  bring  forward  any  witnesses 
you  may  have  for  the  defense. 

Dana.  I  have  only  one  witness  to  call,  and  that  is  Hopes. 
Come  forward,  Ropes. 

Colman.  I  should  like  to  know,  your  honor,  what  he  is  going 
to  prove  by  his  witness. 

Dana.  I  am  going  to  prove  that  this  pretended  confession, 
which  the  counsel  on  the  other  side  alleges  against  my  client,  is 
no  confession  at  all.  It  is  true,  as  he  says,  that  the  best  possible 
evidence  against  any  person  charged  with  any  crime  is  his  own 
confession,  but  then  it  must  be  a  true  and  genuine  one,  and  I 
am  going  to  prove  that  this  which  they  allege  against  my  client 
was  no  confession  at  all. 

The  Judge.  Very  well ;  proceed. 


CONFESSION.  115 


How  Murray  knew  his  cap  was  thrown  in.  Confessing  in  play. 

Dana.  Were  you  present  on  the  bank,  Ropes,  at  the  time  when 
Murray  lost  his  cap  into  the  water  ? 

Ropes.  Yes,  I  was. 

Dana.  And  did  you  hear  Sparks  when  he  said  that  he  did  it  ? 

Ropes.  Yes,  I  did. 

Dana.  I  want  you  to  give  the  jury  an  account  of  how  it  was. 
Explain  to  them  all  the  circumstances. 

Ropes.  The  way  was  this :  when  Murray  came  up  the  bank 
with  his  cap,  he  began  to  call  out  to  the  boys  to  tell  him  who 
threw  it  into  the  water.  He  said  he  knew  that  some  of  them 
threw  it  in,  for  there  was  a  string  tied  round  it.  If  it  had  not 
been  for  that,  he  should  have  supposed,  he  said,  that  it  rolled  in 
of  itself ;  but  he  knew  that  some  of  them  threw  it  in  by  the  string, 
and  if  he  could  find  out  who  did  it,  he  declared  that  he  would 
spank  the  wet  cap  in  their  faces,  to  pay  them  for  it. 

Dana.  And  what  did  the  boys  say  to  that  ? 

J^opes.  They  all  began  to  say,  "  I  did  it — I  did  it,"  and  to  run 
off,  while  Murray  chased  them  with  the  wet  cap  to  spank  it  in 
their  faces ;  but  he  could  not  catch  any  of  them. 

Dana.  And  did  you  understand  that  the  boys,  in  saying  they 
did  it,  really  meant  that  they  dropped  the  cap  into  the  water, 
or  did  they  only  say  so  in  play,  to  make  Murray  chase  them  with 
the  cap  ? 

Ropes.  Why,  I  thought  that  they  only  said  so  in  play. 

The  Judge.  Did  all  the  boys  that  were  there  say  I  did  it  ? 

Ropes.  Yes,  all  except  Hardy.  Hardy  did  not  run  at  all ;  he 
sat  still  at  the  foot  of  the  tree.  He  was  laughing  so  much  that  he 


116  CONFESSION. 


The  argument  for  the  plaintift  For  the  defendant. 

could  not  run.  After  a  while  he  climbed  up  into  the  tree  to  get 
out  of  the  way. 

Dana.  That  is  all.     I  have  no  more  witnesses  to  bring. 

The  Judge.  Then,  Colman,  you  can  argue  the  case  to  the  jury, 
if  you  have  any  thing  to  say  to  them. 

Colman.  All  that  I  have  to  say  is,  I  have  proved  positively  that 
Sparks  acknowledged  that  he  put  the  cap  in  the  water,  and  I 
think  his  confession  ought  to  be  taken  against  him.  He  ought 
not  to  be  allowed,  after  confessing  that  he  did  it,  to  come  into 
court  and  say  that  in  confessing  it  he  told  a  fib.  If  he  chose  to 
confess  it  when  he  really  did  not  do  it,  he  ought  to  take  the  con 
sequences,  just  as  if  he  really  did  do  it.  So  I  hope  that  the  jury 
will  find  him  guilty,  and  make  him  pay  ten  cents  damages,  which 
is  not  at  all  too  much,  considering  the  injury  done  to  the  cap,  and 
all  the  trouble  that  Murray  had  in  drying  it. 

The  Judge.  Now,  Dana,  it  is  your  turn,  if  you  have  any  thing 
to  say. 

Dana.  What  I  have  to  say  is  that  the  words  which  they  proved 
that  my  client  said  do  not  amount  to  any  real  confession  at  all. 
I  think  the  jury  will  be  satisfied  that  the  boys,  when  they  said 
I  did  it,  did  not  any  of  them  mean  really  to  admit  that  they 
dropped  the  cap  into  the  water,  but  they  only  said  it  to  make  fun, 
and  to  have  Murray  chase  them.  Perhaps  they  did  wrong  in  say 
ing  so,  and  perhaps  they  didn't.  I  say  nothing  about  that,  one 
way  or  the  other ;  for  my  client  is  not  now  on  trial  for  telling  a  fib, 
but  only  for  dropping  a  cap  in  the  water.  And  I  think  the  jury 
will  be  satisfied  that  his  saying  I  did  it,  in  such  a  way,  in  com- 


CONFESSION.  117 


There  are  many  confessions  that  are  not  entitled  to  be  believed. 

pany  with  a  good  many  others,  was  only  to  make  fun,  and  that  is 
no  proof  at  all  that  he  was  the  one  that  is  really  guilty ;  and 
therefore  they  ought  to  decide  in  his  favor. 

The  Judge.  Gentlemen  of  the  jury,  you  have  heard  what  the 
counsel  on  each  side  have  said.  I  think  that  they  have  presented 
the  point  very  clearly  and  properly  to  you.  The  question  simply 
is,  Whether  what  Sparks  said  was  a  real  and  true  confession,  such 
as  to  furnish  sufficient  proof  that  he  really  did  throw  the  cap  in. 
A  confession  of  the  right  kind  is  perhaps  the  best  evidence  against 
a  person  charged  with  an  offense  that  we  can  possibly  have ;  but, 
then,  it  is  very  essential  that  it  should  be  of  the  right  kind.  There 
are  a  great  many  cases  in  which  what  are  called  confessions  are 
considered  as  entitled  to  no  weight  at  all  in  courts  of  justice. 

For  example,  persons  are  often  frightened  into  confessing  a 
crime  which  they  were  entirely  innocent  of.  They  have  been 
threatened  with  some  dreadful  consequences  if  they  did  not  con 
fess,  and  so  haye  acknowledged  that  they  were  guilty  when  they 
were  really  perfectly  innocent.  Persons  have  been  hired,  too,  to 
confess  a  crime  which  somebody  else  had  committed.  Persons 
have  confessed  crimes  when  they  were  intoxicated  or  when  in 
sane  that  had  no  existence  at  all  except  in  their  own  disordered 
imaginations.  So,  you  see,  there  are  all  sorts  of  confessions,  good 
and  bad,  and  what  you  have  to  consider  in  this  case  is  whether  or 
not  this  one,  that  is  proved  against  Sparks,  is  really  a  good  one — 
that  is,  whether  it  really  is  sufficient  proof  that  he  was  the  one 
that  threw  the  cap  into  the  water. 

The  jury  now  retired  to  consider  the  verdict.     After  a  very  few 


118  CONFESSION. 


The  jury  find  Hardy  guilty.  Their  reason.  A  new  trial  ordered. 

minutes  they  returned.  Clicket,  who  acted  as  foreman,  said  that 
they  were  agreed  on  the  verdict. 

The  Judge.  And  what  is  the  verdict  ? 

Clicket.  We  believe  that  it  was  Hardy  that  threw  the  cap  into 
the  water,  and  so  we  decide  that  he  must  pay  the  ten  cents,  and 
not  Sparks. 

At  hearing  this  verdict  there  was  a  general  laugh  both  within 
the  court  and  among  the  by-standers.  Even  the  judge  could  not 
refrain  from  smiling.  At  length  the  judge  called  the  assembly  to 
order,  and  then  addressed  the  jury  as  follows : 

The  Judge.  But,  Clicket,  what  made  you  imagine  that  Hardy 
was  the  one?  There  was  no  evidence  whatever  brought  against 
him. 

Clicket.  Because  it  is  just  like  him  to  do  such  things  as  that. 

Here  there  was  another  general  laugh,  occasioned  by  the  idea 
which  Clicket  seemed  to  entertain  of  the  nature  of  legal  evidence 
and  of  the  duty  of  a  jury.  As  soon  as  order  was. again  restored, 
the  judge  proceeded  as  follows  : 

The  Judge.  I  shall  be  obliged  to  set  that  verdict  aside  and  or 
der  a  new  trial. 

Clicket.  Why  ?     Is  not  that  a  good  verdict  ? 

The  Judge.  No,  it  is  not  good,  for  this  reason.  You  were  a 
jury  to  try  Sparks  and  not  Hardy.  Hardy  was  not  accused,  and 
was  not  on  trial.  Besides,  there  was  no  evidence  brought  against 
him  at  all ;  and  even  if  there  had  been  ever  so  good  evidence 
against  him,  it  would  all  have  been  incidental,  and  would  not  have 
justified  condemning  him.  A  person  can  not  be  condemned  until 


CONFESSION.  119 


Why  the  verdict  was  irregular.  Another  trial.  The  conspiracy. 

he  is  regularly  accused,  and  has  an  opportunity  to  bring  forward 
witnesses  in  his  defense,  and  to  argue  his  case  before  the  jury. 
So  that  your  verdict  was  on  every  account  irregular. 

I  therefore  set  aside  that  verdict.  Sparks  is  neither  acquitted 
nor  condemned.  Murray  can  bring  forward  the  case  again  if  he 
chooses,  and  have  a  new  trial,  though  I  should  not  advise  him  to 
do  so  unless  he  gets  some  new  evidence,  for  I  do  not  think  that 
such  a  confession  as  he  made  ought  to  be  considered  by  any  jury 
as  proof  of  his  guilt. 

A  few  days  after  this  a  new  trial  of  this  case  was  had,  new  evi 
dence  in  the  mean  time  having  been  obtained.  In  the  new  trial, 
however,  Sparks  was  not  the  only  one  that  was  accused.  Erskine 
and  Hardy  were  accused  with  him.  They  were  all  three  charged 
with  having  conspired  to  throw  the  cap  into  the  water.  There 
was  a  new  jury  empanneled  for  this  second  trial,  though  the  coun 
sel  on  both  sides  were  the  same. 

The  evidence  in  the  second  trial  was  substantially  the  same  as 
in  the  first,  in  respect  to  the  boys'  playing  upon  the  bank,  the  find 
ing  the  cap  in  the  water,  the  drawing  of  it  to  the  land  by  means 
of  the  string,  and  the  frolic  which  afterward  took  place  on  the 
bank  when  Murray  ran  after  the  boys  with  the  wet  cap.  After 
this  evidence  had  been  completed,  Colman,  who  was  counsel  for 
Murray  in  this  case,  as  he  had  been  before,  called  Warner  for 
ward. 

Warner  came  forward  from  among  the  spectators  and  took  his 
place  on  the  witness  stand. 


120  CONFESSION. 


Warner  recounts  the  incident  of  the  cap. 


Colinan.  Do  you  know  any  thing,  Warner,  about  this  case  ? 

Warner.  Yes ;  I  was  there  at  the  time,  and  know  pretty  much 
all  about  it. 

Colman.  Tell  the  jury,  in  the  first  place,  how  you  came  to 
know  about  it. 

Warner.  Why,  I  happened  to  be  at  the  time  on  the  other  side 
of  the  brook.  I  had  been  taking  a  walk  there  among  the  trees 
and  bushes,  and  presently,  when  I  came  out  to  the  path  which 
runs  along  by  the  water  there,  I  heard  the  voices  of  some  boys  on 
the  high  bank  on  the  other  side.  So  I  looked  to  see  who  they 
were. 

Colman.  And  whom  did  you  see  there  ? 

Warner.  I  saw  Murray  sitting  down  under  the  tree  at  work 
on  a  little  vessel.  He  seemed  to  be  rigging  it.  I  saw  also  sev 
eral  other  boys  around  him.  I  saw  that  there  was  some  roguery 
going  on,  and  so  I  watched  to  see  what  it  was. 

The  Judge.  What  made  you  think  there  was  roguery  going 
on? 

Warner.  Why,  I  saw  the  boys  standing  up  behind  Murray 
and  making  signs  to  each  other.  So  I  watched  to  see  what  was 
going  on.  I  saw  that  there  was  an  old  kite-tail  and  piece  of  the 
twine  hanging  down  from  the  tree.  It  belonged  to  one  of  the 
boys'  kites,  I  suppose,  that  had  got  lodged  there.  There  was  a 
piece  of  the  string  hanging  down  over  one  of  the  branches  of  the 
tree. 

Colinan.  Which  way  did  this  branch  extend — toward  the  land 
or  toward  the  water  ? 


122  CONFESSION. 


The  accomplices  in  the  roguery.  Harry  in  the  tree. 

Warner.  It  extended  out  toward  the  water.  It  hung  over  the 
bank  some  distance.  The  piece  of  twine  lay  across  this  branch 
so  that  the  two  ends  hung  down  on  the  two  sides  of  it,  one  on 
each  side.  As  Murray  was  sitting  his  back  was  toward  the  brook, 
so  that  he  did  not  see  any  thing  in  that  direction. 

Colman.  Very  well.  Now,  if  you  please,  tell  the  jury  what 
happened  next. 

Warner.  Hardy  got  hold  of  the  two  ends  of  the  twine,  that 
hung  down  from  the  branch,  and  pretty  soon  he  took  up  Mur 
ray's  cap,  which  lay  on  the  ground  close  by  him,  and  tied  it  to 
one  end  of  the  string.  Then,  by  pulling  upon  the  other  end  of 
the  string,  he  could  hoist  the  cap  up  into  the  air,  or  let  it  down, 
as  he  pleased. 

Colman.  Did  he  do  this  openly,  as  if  he  was  willing  that  Mur 
ray  should  see  it  ? 

Warner.  No,  he  did  it  slyly.  He  made  signs  to  the  other  boys 
not  to  let  Murray  know.  Murray  was  busily  engaged  over  his 
vessel  all  the  time,  and  did  not  know  what  was  going  on. 

Colman.  Which  of  the  other  boys  seemed  to  be  engaged  with 
Hardy  in  this  roguery  ? 

Warner.  I  don't  suppose  that  they  considered  it  roguery.  I 
presume  they  meant  it  only  for  play.  But  the  boys  that  helped 
him  about  it  were  Erskine  and  Sparks.  Erskine  held  one  end 
of  the  twine,  while  Hardy  tied  the  cap  on  the  other  end,  and 
Sparks  stood  by  helping. 

Colman.  Very  well;  go  on  and  tell  the  jury  all  that  hap 
pened. 


CONFESSION.  123 


How  the  boys  fixed  the  cap  so  as  to  fall  when  Murray  rose. 


Warner.  As  soon  as  they  had  got  the  cap  fastened  to  the 
twine,  they  began  to  hoist  it  up  and  down  by  pulling  upon  the 
other  end  of  the  twine.  In  this  way  they  hoisted  it  up  quite 
high  into  the  tree.  Presently  Hardy  made  some  signs  to  them, 
and  then  began  to  climb  up  into  the  tree.  When  he  got  up  there, 
he  made  signs  to  them  to  let  go  of  the  cap,  but  to  keep  hold  of 
the  other  end  of  the  twine.  They  did  so,  and  then  he  slipped 
the  twine,  which  passed  across  the  branch,  away  out,  so  as  to 
let  the  cap  hang  over  the  water.  Then  the  boys  on  the  ground 
began  to  let  it  down,  as  if  they  were  going  to  let  it  down  into  the 
brook. 

Coltnan.  Did  not  Murray  know  what  was  going  on  all  this 
time? 

Warner.  He  did  not  appear  to  know.  He  went  on  rigging 
his  vessel ;  but  his  back  was  toward  the  boys  that  were  playing 
with  his  cap,  and  so  he  could  not  see  them.  Besides,  they  were 
very  sly  about  it,  so  as  to  prevent  his  knowing  what  was  go 
ing  on. 

Colman.  Well,  proceed  with  your  account.  You  have  not  told 
us  yet  how  the  cap  came  into  the  water. 

Warner.  After  playing  with  the  cap  in  this  way  for  a  while, 
the  boys  finally  coiled  the  end  of  the  string  up  on  the  ground 
directly  behind  where  Murray  was  sitting,  and  then  one  of  them 
got  down  upon  the  grass  before  him,  and  asked  him  to  sit  back 
a  little  way.  So  Murray  moved  back,  and  this  brought  him  upon 
the  string.  The  boys  kept  hold  of  the  string  farther  up  until 
they  found  that  Murray  was  sitting  on  it,  and  then  they  let  go. 


124  CONFESSION. 


Was  Murray  or  Hardy  the  cause  of  the  cap's  falling. 


Of  course,  now  Murray's  sitting  on  the  string  kept  the  cap  from 
dropping  into  the  water,  but  it  was  plain  that,  the  moment  he 
should  get  up,  down  the  cap  would  go ;  and  they  had  hung  it  di 
rectly  over  the  water. 

Colman.  Well,  how  did  it  turn  out  ? 

Warner.  After  the  boys  had  got  it  all  arranged  in  this  way, 
they  waited  a  little  while,  expecting  that  Murray  would  get  up. 
At  last,  when  he  had  finished  rigging  his  vessel,  he  got  up,  and 
then  down  the  cap  went  into  the  brook. 

Colman.  And  that  is  all  that  you  saw  ? 

Warner.  Yes  ;  excepting  that  the  boys  immediately  told  Mur 
ray  that  his  cap  was  in  the  water,  and  he  ran  down  the  bank  to 
get  it.  He  pulled  it  in  by  the  string. 

Dana.  So  that,  in  reality,  it  was  Murray  himself  who  dropped 
his  cap  into  the  water  ? 

Warner.  Yes — or,  rather,  I  don't  know  whether  you  will  con 
sider  that  it  was  Murray,  or  the  boys,  that  dropped  it  in.  I  sup 
pose  that  will  be,  for  the  jury  to  determine.  The  way  in  which 
it  was  done  was  as  I  have  told  you.  The  boys  put  the  string  so 
as  to  make  Murray  sit  on  it,  and  then  when  he  got  up  the  cap 
fell  in. 

The  Judge.  Are  there  any  more  witnesses  to  be  examined  be 
fore  the  case  goes  to  the  jury  ? 

Colman.  I  have  no  more. 

Dana.  I  have  none. 

The  Judge.  Proceed,  then,  Colman,  if  you  have  any  thing  to 
say  to  the  jury. 


CONFESSION.  125 


Colman's  speech.'  Dana  replies  to  him. 

Colman.  I  scarcely  think,  gentlemen  of  the  jury,  that  it  is 
necessary  for  me  to  say  any  thing.  The  witness  that  I  brought 
forward  has  given  an  account  of  the  affair  that  makes  it  perfect 
ly  plain.  There  is  no  question  about  it  at  all.  These  three 
boys  all  conspired  together  to  put  the  cap  in  such  a  position 
that,  on  Murray's  rising  from  his  seat,  it  should  fall  into  the 
water.  The  case  is  just  the  same  as  if  they  had  dropped  it  in 
with  their  own  hands.  I  think,  therefore,  that  you  ought  to  de 
cide  against  them,  and  fine  them  about  four  cents  apiece,  to  com 
pensate  Murray  for  the  damage  done  to  his  cap  by  being  wet,  and 
for  his  trouble. 

The  judge  now  called  upon  Dana  to  argue  the  case  for  the  de 
fense. 

Dana.  It  seems  to  me,  gentlemen  of  the  jury,  that  you  ought 
not  to  give  a  verdict  against  my  clients,  because  the  thing  charged 
against  them  has  not  been  proved.  What  was  the  charge  brought 
against  them  ?  Why,  that  they  threw  Murray's  cap  into  the 
water.  Now  it  is  proved  by  Murray's  own  witness  that  they  did 
no  such  thing.  They  only  hung  the  cap  up  on  a  tree.  {Laugh 
ter  among  the  by-standers.}  The  gentlemen  may  laugh  if  they 
please,  but  I  insist  upon  it  that  this  is  all  they  did.  They  hung 
the  cap  up  on  a  tree,  and  then  coiled  the  string  that  was  fastened 
to  it  on  the  ground.  It  is  true,  the  consequence  of  these  things 
was  that,  after  a  while,  the  cap  got  into  the  water.  But  people 
are  not  always  responsible  for  the  consequences  of  what  they  do. 
I  contend  they  are  only  responsible  for  the  things  they  actually 
do  themselves. 


126  CONFESSION. 


The  charge  of  the  judge.  Acts  and  their  consequences. 

If,  now,  the  charge  against  my  clients  was  that  they  hung 
Murray's  cap  on  a  tree  in  such  a  manner  that  it  afterward  fell 
into  the  water,  then  perhaps  you  ought  to  give  a  verdict  against 
him.  But  that  is  not  the  charge.  The  charge  is  that  they  threw 
it  in  themselves,  and  this  has  not  been  proved.  On  the  contrary, 
it  has  been  proved  that  they  did  not  throw  it  in.  His  own  wit 
nesses  prove  this. 

The  Judge.  Gentlemen  of  the  jury,  this  case  has  been  very 
fully  presented  to  you.  The  simple  question  for-  you  to  decide  is 
whether  the  defendants  did  "throw  the  cap  into  the  water,"  with 
in  the  ordinary  and  proper  use  of  that  language.  They  did  not 
throw  it  in  with  their  own  hands,  but  they  made  such  arrange 
ments  as  resulted  in  the  throwing  of  it  in.  Was  that  throwing 
it  in? 

Cases  analogous  to  this  often  occur  among  men.  I  read  of  a 
case  where  a  man  named  Dirck  sent  a  box  to  a  man  named  Jones, 
and  in  the  box  was  a  pistol,  which  was  arranged  in  such  a  way 
that  when  the  cover  of  the  box  was  lifted  up  the  pistol  should 
go  off.  He  meant  that  Jones  should  open  the  box,  and  so  get 
killed. 

Clicket  (interrupting  the  court}.  And  did  he  get  killed  ? 

The  Judge  (proceeding).  It  so  happened  in  this  instance  that 
the  plan  failed.  Jones  had  some  reason  to  suspect  treachery,  and 
so  he  soaked  the  box  well  in  water  before  he  opened  it,  and  then, 
of  course,  when  he  lifted  up  the  cover,  though  the  lock  of  the  pis 
tol  snapped,  the  powder",  being  wet,  did  not  burn.  Thus  the  plot 
failed. 


CONFESSION.  127 


The  torpedo  box.  The  jury  ask  more  instructions. 

But  now  suppose  that  Jones  had  not  suspected  any  thing,  but 
had  opened  the  box  at  once  when  he  first  received  it,  and  had 
been  killed  by  the  pistol,  and  then  suppose  that  Dirck  had  been 
tried  for  murder.  In  such  a  case  as  that,  ought  the  jury  to  con 
sider  that  Dirck  was  guilty  or  not  guilty  ?  In  other  words,  ought 
they  to  consider  that  Dirck  killed  Jones,  or  that  Jones  killed 
himself?  - 

It  is  a  question  very  similar  to  that  which  you,  gentlemen  of 
the  jury,  have  to  decide  in  this  case,  and,  without  any  further  re 
marks,  I  leave  you  to  decide  it. 

Hereupon  the  jury  retired,  but  after  a  short  time  they  came 
into  court  again. 

The  Judge.  Gentlemen  of  the  jury,  have  you  agreed  upon  your 
verdict  ? 

A  Juryman.  No,  not  yet.  We  want  to  ask  you  a  question 
first. 

The  Judge.  Very  well.     What  is  the  question  ? 

The  Juryman.  In  case  we  decide  that  the  boys  did  throw  the 
cap  into  the  water,  are  we  also  to  decide  how  much  damages  they 
shall  pay  ? 

The  Judge.  Yes.  The  whole  case  is  in  your  hands.  You 
are  to  determine  if  they  are  guilty,  and  if  so,  what  the  damages 
shall  be. 

Hereupon  the  jury  retired  again,  and  again,  after  being  absent 
a  few  minutes,  they  returned. 

The  verdict  was,  that  the  three  boys  were  guilty,  and  that 
Sparks  and  Hardy  must  pay  four  cents  apiece,  and  Erskine  two 


128  CONFESSION. 


The  end  of  the  case  of  the  cap  conspiracy. 


cents,  to  Murray  for  damages,  and  that  all  three  of  them  must  pay 
one  cent  each  into  the  black  box. 

As  soon  as  the  verdict  was  given,  the  judge  announced  that 
the  court  was  adjourned,  when  immediately  Clicket  burst  forth 
from  among  the  by-standers,  and  went  off  leaping,  and  shouting, 
and  waving  his  cap  in  the  air,  with  shouts  of  "  Hur-rah !  hur 
rah  !  I  told  'em  so !  I  knew  that  Hardy  was  at  the  bottom 
of  it!" 

The  defendants  paid  their  fines  and  the  contribution  to  the 
black  box  good-naturedly,  and  thus  was  settled  the  case  of  the 
cap  conspiracy. 


INSUBORDINATION.  129 


Paying  damages.  Disobedience  to  law.  True  manliness. 


IX. 

INSUBORDINATION. 

DURING  the  time  that  the  court  existed  at  the  Morningdale 
school,  there  was  seldom  any  difficulty  in  inducing  the  parties 
whose  cases  were  tried  in  it  to  submit  to  the  decisions.  If  the 
question  was  about  a  squirrel,  or  a  trap,  or  a  fishing-pole,  or  any 
other  piece  of  property,  the  subject  of  dispute  was  usually  surren 
dered  at  once  by  the  boy  that  lost  the  case ;  and  even  when  fines 
were  inflicted,  the  money  was  usually  paid  into  the  black  box 
quite  readily.  Occasionally,  it  is  true,  when  some  small  boy  was 
fined,  he  would  declare,  when  the  court  adjourned,  that  the  ver 
dict  was  unjust,  and  that  he  would  not  pay  the  money.  But 
then,  after  a  little  reflection,  he  usually  altered  his  mind  and 
paid  it  in. 

This  hesitation  in  submitting  to  the  decision  of  the  court  was 
somewhat  excusable  in  the  case  of  the  small  boys,  for  boys, 
when  very  young,  can  not  be  expected  to  understand  much  about 
the  necessity  and  duty  of  subordination  to  law.  Indeed,  it  is 
probable  that  if  an  attempt  were  to  be  made  to  establish  such  a 
court  as  this  in  any  ordinary  school,  it  would  fail  on  this  very  ac 
count.  There  would  not  be  manliness  enough  among  the  boys 
to  understand  and  feel  the  necessity  of  submitting  to  the  de 
cisions. 

There  would  be  another  difficulty,  too,  that  would  probably  pre- 
31  I 


130  INSUBORDINATION. 


The  tact  of  Judge  Justin  in  preserving  order  in  court. 


vent  the  success  of  the  attempt  to  establish  such  a  court  as  this 
in  most  schools,  namely,  the  impossibility  of  preserving  order  in 
the  court  itself  while  the  proceedings  were  going  on.  Indeed,  in 
the  case  of  the  court  of  Morningdale,  these  difficulties  would  have 
proved  insuperable,  and  would  have  brought  the  thing  to  a  stand 
very  soon,  had  it  not  been  for  the  remarkably  manly  character  and 
discreet  management  of  Judge  Justin.  By  means  of  his  patience 
and  his  tact,  combined  with  the  ascendency  which  he  exercised 
over  the  others  in  consequence  of  his  age  and  his  attainments,  he 
succeeded  in  almost  all  cases,  both  in  preserving  order  in  the  court, 
and  also  in  inducing  those  who  lost  their  case  to  submit  to  the 
decisions  which  were  pronounced  against  them.  There  was  one 
case,  however,  where  the  refusal  of  a  boy  to  submit  to  the  decision 
of  the  court  occasioned  considerable  trouble,  though  the  difficulty 
was  finally  settled  to  the  satisfaction  of  all  concerned. 

Among  the  other  persons  employed  about  the  house  and  grounds 
of  the  Morningdale  school  was  a  colored  boy  named  Lingo.  Lin 
go's  business  was  that  of  a  messenger  generally.  He  went  of 
errands,  helped  harness  the  horses,  brought  tools,  and  water  to 
drink,  for  the  other  workmen  employed  about  the  grounds,  and,  in 
a  word,  was  expected  to  make  himself  generally  useful.  It  was 
understood  that  any  body  might  call  upon  him,  even  the  boys, 
and  it  was  his  duty  always  to  run  when  called  upon,  and  do  any 
thing  and  every  thing  which  might  be  required.  This,  for  most 
boys,  would  have  been  a  hard  lot,  but  Lingo  was  so  patient  and 
good-natured,  and,  moreover,  generally  so  full  of  fun,  that  the  boys 
all  liked  him  very  much,  and  they  exercised  a  much  greater  de- 


INSUBORDINATION.  131 


Lingo  and  Urbin.  Watering  the  gardener. 

gree  of  discretion  in  requiring  services  of  him  than  might  have 
been  expected. 

One  Saturday  afternoon,  very  soon  after  dinner,  a  boy  named 
Urbin  was  coming  out  from  the  door,  when  he  saw  Lingo  pump 
ing  a  small  tin  pail  full  of  water  from  the  pump  which  stood  near 
the  kitchen  door.  The  garden  gate  was  open,  and  Urbin  inferred 
that  Lingo  had  just  come  out  from  the  garden,  and  that  he  was 
going  back  again. 

"Lingo,"  said  Urbin,  "what  are  you  doing?" 

"  I  am  going  to  carry  some  water  into  the  garden,"  replied 
Lingo. 

"  What  are  you  going  to  water  with  it?"  asked  Urbin. 

"  I  am  going  to  water  Uncle  Jack,"  said  Lingo. 

Uncle  Jack  was  the  gardener. 

"  Well,  Lingo,  I  want  you,"  said  Urbin. 

"I'll  come  directly,"  said  Lingo,  "as  soon  as  I  have  carried 
this  water  to  Uncle  Jack." 

"  That's  right,"  said  Urbin  ;  "  and,  in  the  mean  time,  I'll  be 
getting  this  fishing-line  untangled." 

So  Urbin  sat  down  on  the  edge  of  the  piazza,  and  proceeded  to 
untangle  his  fishing-line.  As  soon  as  Lingo  had  filled  his  pail, 
he  set  it  down  on  the  platform  of  the  pump,  and  went  toward  the 
kitchen  door  as  if  he  were  going  into  the  house,  whistling  as  he 
went. 

"Here!  here!"  said  Urbin,  calling  out  to  him  suddenly. 
"Where  are  you  going?" 

"I  am  going  to  get  some  molasses  to  put  into  the  water,"  re- 


132  INSUBORDINATION. 


Sweetening  the  gardener.  Urbin  asks  for  the  boat-truck. 

plied  Lingo.  "  I  have  got  to  sweeten  Uncle  Jack  as  well  as 
water  him." 

"Very  well,"  said  Urbin.     And  so  Lingo  went  on. 

In  a  few  minutes  Lingo  came  out  with  a  small  jug  of  molasses 
in  his  hand.  He  carried  the  molasses  and  the  water  out  into  the 
garden,  and  then  came  back. 

"  Now,  Lingo,"  said  Urbin,  "  look  about,  and  find  about  half  a 
dozen  or  a  dozen  of  the  best  boys  you  can,  and  ask  them  how 
they  would  like  to  go  with  me  and  take  the  boat  down  to  the  riv 
er.  And  ask  Murray  if  we  may  take  the  boat-truck.  Tell  Mur 
ray  that  we  should  like  to  have  him  go  too,  if  he  will ;  but,  at  any 
rate,  ask  him  if  we  may  take  the  boat -truck." 

The  boat-truck,  as  the  boys  called  it,  was  a  sort  of  truck  made 
from  a  pair  of  old  wagon  wheels,  with  the  axle-tree  belonging  to 
them.  It  was  used  for  transporting  a  boat  which  the  boys  had 
.  in  their  pond,  near  the  school-house,  down  to  the  river,  and  also 
to  bring  it  back  again.  The  brook  itself  was  not  navigable  be 
low  the  dam  by  which  the  pond  was  formed,  and,  accordingly, 
whenever  the  boys  wished  to  move  their  boat  from  one  sheet  of 
water  to  the  other,  they  were  obliged  to  convey  it  by  land ;  to 
facilitate  this  transport  they  had  contrived  the  truck.  It  con 
sisted,  as  has  already  been  said,  of  an  old  wagon  axle-tree  with  a 
pair  of  wheels  attached.  Upon  the  axle-tree  the  boys  had  fasten 
ed  a  plank  in  a  vertical  position,  that  is,  edge  upward,  and  they 
had  so  shaped  this  upper  edge  as  to  fit  the  bottom  of  the  boat, 
thus  forming  what  is  called  a  cradle.  The  boat,  resting  in  this 
cradle,  was  kept  upright  and  steady  when  the  truck  was  in  mo- 


INSUBORDINATION.  133 


Public  property  should  be  in  charge  of  particular  custodians. 


tion.  The  poise  of  the  boat  the  other  way,  that  is,  from  end  to 
end,  was  preserved  by  the  boys  themselves,  who  took  hold  of  it  to 
push  it  along. 

This  is  an  excellent  way  to  move  a  boat  for  a  short  distance 
over  land,  and  I  commend  it  to  all  boys  who  may  have  occasion 
to  perform  such  an  operation,  as  a  very  convenient  mode,  and  one 
easy  for  them  to  carry  into  effect,  that  is,  provided  that  they  get 
the  old  wagon  wheels. 

The  boat-truck,  when  made,  was  put  under  the  charge  of  Mur 
ray.  It  was  the  custom  at  Morningdale  that  all  public  property 
like  this,  belonging  to  the  boys,  was  committed  to  the  charge  of 
a  particular  custodian,  whose  business  it  was  to  take  care  of  it, 
to  see  that  it  was  always  in  repair,  and  to  keep  it  in  its  proper 
place.  The  custodian,  in  such  cases,  acted  as  a  sort  of  trustee, 
and  he  had  the  property  thus  confided  to  him  under  his  control  at 
all  hours.  No  one  could  take  it  without  his  permission.  But 
then  it  was  always  his  duty  to  give  permission,  unless  the,re  was 
some  good  and  sufficient  reason  why  he  should  withhold  it. 

In  other  words,  although  he  held  the  property,  still  he  held  it 
not  in  his  own  right,  but  as  tmistee ;  that  is,  he  held  it  not  for 
his  own  benefit,  but  for  the  benefit  of  the  owners,  and  it  was,  of 
course,  his  duty  to  make  it  as  constantly  and  as  fully  available 
for  the  owners'  use  as  possible. 

It  is  an  excellent  plan,  when  boys  in  schools  or  in  neighbor 
hoods  hold  property  in  common  in  this  way,  that  they  should 
appoint  some  one  to  take  charge  of  it,  and  to  hold  it  for  their  use. 
It  is  important,  however,  that  the  person  thus  appointed  should 


134  INSUBORDINATION. 


Public  property  should  not  be  monopolized  by  individuals. 


be  old  enough  to  understand  the  distinction  between  holding 
property  in  this  way  as  trustee  for  other  people,  and  holding 
property  of  his  own  for  himself.  I  have  known  boys  in  such  a 
case  who  seemed  to  confound  this  distinction  entirely,  and  act 
with  property  thus  held  by  them  in  trust  almost  as  arbitrarily, 
and  appropriate  it  almost  as  much  to  their  own  use,  as  if  it  had 
been  really  their  own. 

Lingo  came  back  after  a  short  time  and  reported  that  a  number 
of  boys  were  coming  to  join  the  proposed  expedition. 

"And  Murray  says,  too,"  he  added,  "that  you  may  take  the 
truck  and  the  boat." 

"Very  good,"  rejoined  Urbin. 

"  He  says  the  boat  is  locked,  and  the  key  of  the  padlock  is  on 
the  nail  just  inside  the  door  of  his  room." 

"  Good !"  said  Urbin.  "  And  you  may  go  right  up  to  his  room 
now  and  get  it." 

In  a,few  minutes  eight  or  ten  boys  were  collected  on  the  plat 
form. 

"  Now,"  said  Urbin,  "  the  first  thing  is  to  choose  a  captain. 
Choose  whomsoever  you  please — I  don't  care — only  don't  choose 
me,  unless  you  intend  to  obey  me." 

In  saying  this,  Urbin  referred  to  another  of  the  peculiar  cus 
toms  of  Morningdale,  which  was,  always  to  choose  a  captain  in 
case  of  excursions  of  this  kind.  The  captain,  when  chosen,  did 
not,  it  is  true,  exercise  his  command  in  any  very  regular  or  for 
mal  manner.  Indeed,  generally,  during  the  progress  of  the  ex- 
peditionr  a  by-stander,  observing  the  boys,  would  hardly  imagine 


INSUBORDINATION.  135 


How  the  boys  of  Morningdale  chose  their  captain. 


that  there  was  any  captain  at  all.  So  long  as  things  went  on 
well,  he  assumed  very  little  authority  and  gave  very  few  orders. 
Still,  the  captain  was  there,  ready  at  hand ;  and  in  case  of  any 
difficulty  or  emergency,  he  was  the  one  to  decide  what  to  do,  and 
if  any  question  arose  as  to  the  course  of  procedure,  he  was  the  one 
to  decide  it. 

The  captains  were  chosen  by  regular  vote.  There  was  a  little 
drawer  under  a  seat  in  the  summer-house,  where  the  courts  were 
usually  held,  in  which  there  was  always  kept  a  good  supply  of 
blank  ballots — that  is,  of  pieces  of  paper  about  one  inch  long  and 
half  an  inch  wide.  There  were  also  several  pencils  in  the  draw 
er.  Whenever  an  expedition  like  the  one  I  am  describing  was 
undertaken,  the  boys  usually  proceeded  to  the  summer-house,  and 
chose  the  captain  by  voting  for  him  in  a  regular  manner.  Gen 
erally  the  boy  who  proposed  the  expedition  was  the  one  who  was 
chosen  captain,  but  this  was  not  always  the  case. 

It  was  in  allusion  to  this  custom  that  Urbin  told  the  boys  to 
choose  whomsoever  they  liked,  in  order  that  they  might  not  feel 
bound  to  choose  him. 

It  was  the  rule  that  the  two  youngest  boys  in  the  party  on 
such  occasions  were  to  receive  and  count  the  votes,  and  announce 
the  result. 

It  need  scarcely  be  said,  I  suppose,  that  these  arrangements 
for  voting,  and  the  rules  and  usages  by  which  the  voting  was 
regulated,  were  all  Justin's  work.  Justin  had  two  reasons  for 
making  it  the  duty  of  the  smallest  boys  in  the  party  to  receive 
and  count  the  votes.  One  was,  because  it  was  quite  certain  that 


136  INSUBORDINATION. 


Reasons  for  making  the  smallest  boys  tellers. 


neither  of  them  would  be  the  one  chosen  captain,  and  so  they 
could  always,  without  impropriety,  announce  the  result  of  the 
election.  The  other  was,  that  he  wished  to  give  the  youngest 
as  well  as  the  oldest  a  practical  participation  in  the  proceeding, 
in  order  to  interest  them  in  it,  and  make  them  more  disposed  to 
obey  the  captain  when  chosen,  from  the  fact  that  they  had  acted 
an  important  part  in  the  choosing  of  him.  In  these,  as  in  all  his 
other  arrangements,  Justin  evinced  a  great  deal  of  wisdom. 

In  obedience  to  Urbin's  call,  the  boys  all  went  to  the  summer- 
house. 

"  Who's  the  youngest  ?"  said  Urbin. 

"  I  am,"  said  Sparks. 

"No,  I  am,"  said  Clicket. 

"Then  you  and  I  together,"  said  Sparks. 

So  Clicket  opened  the  drawer,  and,  taking  out  a  parcel  of  the 
ballots,  he  gave  some  to  Sparks  and  retained  some  himself,  and 
then  the  two  boys  proceeded  to  distribute  them  to  all  the  party. 
They  also  distributed  the  pencils.  As  fast  as  the  boys  received 
the  ballots  and  the  pencils,  they  proceeded  to  write  the  name  upon 
them  of  the  person  for  whom  they  respectively  wished  to  vote, 
and  then  Sparks  collected  the  ballots,  while  Clicket  put  back 
the  blank  ballots  that  were  not  used,  and  also  the  pencils.  As 
soon  as  the  ballots  were  all  in,  Clicket  and  Sparks  spread  them 
down  upon  the  seat,  and  began  counting  them  over.  All  this 
time,  the  boys  who  had  been  voting  were  standing  and  sitting  in 
all  sorts  of  attitudes  in  and  about  the  summer-house,  talking  to 
gether  in  a  very  eager  and  uninterrupted  manner,  like  so  many 


INSUBORDINATION.  137 


Eight  votes  out  of  eleven  for  Urbin.  Lingo  goes  for  permission. 

members  of  Congress  pending  the  taking  of  the  yeas  and  nays. 
In  a  few  minutes,  however,  Ciicket's  voice  was  heard  rising  in  a 
shout  above  the  general  din, 

"  Eleven  votes !  Eight  for  Urbin !  Urbin  is  chosen !  HUR 
RAH  !" 

The  whole  party  immediately  left  the  summer-house.  They 
proceeded  in  a  body  to  a  sort  of  back  shed  which  served  as  a  gen 
eral  place  of  storage  for  wagons,  trucks,  wheelbarrows,  and  other 
things  of  that  sort.  They  got  out  the  boat-truck,  and  then,  some 
taking  hold  of  the  shafts  in  front,  and  some  of  a  long  rope  with 
cross-bars  that  extended  forward,  while  others  still  pushed  behind, 
they  ran  with  it  along  a  smooth  and  broad  road,  well  graveled, 
toward  the  pond.  Just  before  they  reached  the  landing,  Lingo 
came  with  the  key. 

"  Have  you  got  the  key,  Lingo  ?"  asked  Urbin. 

"  Yes,"  said  Lingo.     "  Here  it  is." 

"  Well,  now,  while  we  are  getting  the  boat  on  the  truck, 
Lingo,  I  want  you  to  go  up  and  tell  Dr.  Mather  that  we  are 
going  down  to  the  river  with  the  boat  this  afternoon,  and  ask 
him  if  you  may  go  with  us.  We  may  want  you  for  something 
or  other." 

Lingo  ran  off  with  great  glee  to  obtain  this  permission.  He 
liked  to  go  with  the  boys  on  their  expeditions  very  much  in 
deed. 

The  way  of  loading  the  boat  upon  the  truck  was  to  back  the 
truck  down  into  the  water,  under  the  boat,  as  it  were,  and  then 
to  draw  both  out  together.  There  was  a  convenient  landing 


138  INSUBORDINATION. 


The  boat  upon  the  truck.  Bruno.  The  flag. 

which  the  boys  had  sloped  and  graveled  expressly  for  this  pur 
pose.  They  now,  accordingly,  backed  the  truck  down  this  land 
ing  into  the  water,  and  then  two  boys,  who  had  previously  got 
into  the  boat  for  this  purpose,  and  had  pushed  it  a  little  way 
from  the  shore,  brought  it  up  over  the  truck  so  as  to  let  it  set 
in  the  cradle  upon  the  axle-tree.  The  boys  then  on  the  shore, 
pulling  upon  the  rope,  drew  truck,  boat,  and  all  out  upon  dry 
land. 

They  let  it  stand  a  moment  to  allow  the  water  to  drain  off 
from  it,  and  they  also  passed  a  rope  round  over  the  forward  part 
of  the  boat  and  tied  it  below,  so  as  to  secure  it  to  the  shafts.  All 
this  time  Bruno,  a  dog  that  belonged  to  the  boys,  was  racing 
round  and  round  the  boat  in  great  glee,  rejoicing  in  the  prospect 
of  going  off  with  the  party  on  their  expedition  ;  for  Bruno  enjoyed 
these  excursions  quite  as  much  as  the  boys. 

"Now,  Sparks,"  said  Urbin,  "where's  the  flag?" 

"  I'll  run  and  get  it,"  said  Sparks. 

"I'll  go,"  said  Clicket. 

"  No,"  rejoined  Urbin,  "  let  Sparks  go.  We'll  move  along. 
You  can  come  with  it  and  overtake  us." 

Sparks  soon  came  with  the  flag,  and  then,  by  Urbin's  direction, 
he  mounted  into  the  boat  and  took  his  station  there,  near  the 
middle  of  it,  and  held  the  flag.  Bruno  got  into  the  boat  too,  and 
took  his  place  forward.  In  this  way  the  boat  was  drawn  by  the 
boys  along  the  road  which  led  to  the  river. 

It  was  in  the  course  of  this  expedition  that  the  difficulty  orig 
inated  which  led  in  the  end  to  a  refusal  on  the  part  of  one  of  the 


140  INSUBORDINATION. 


Loss  of  the  linch-pin.  The  alarm.  Stopping  in  time. 

boys  to  submit  to  the  decision  of  the  court.  The  boy  was  Urbin 
himself. 

There  was,  however,  another  difficulty  that  happened  first,  and 
which,  accordingly,  I  must  first  briefly  explain.  It  occurred  in 
consequence  of  an  accident  that  happened  to  the  truck.  This  ac 
cident  was  no  other  than  the  losing  of  a  linch-pin. 

The  loss  was  discovered  just  as  the  boys  reached  the  bottom 
of  a  long  hill.  The  alarm  was  given  by  the  boys  who  had  hold 
of  the  boat  behind.  They  saw  one  of  the  wheels  coming  oif,  and 
they  immediately  raised  a  great  shout  and  outcry,  calling  upon 
those  who  were  drawing  upon  the  rope  forward  to  stop. 

' '  Hallo ! "  said  they.  "  Stop ! "  "  Hold  on ! "  "  Avast  haul 
ing  there ! "  "  Hi-yo  ! "  "  The  wheel's  coming  off." 

The  train  was  stopped  just  in  time  to  save  the  wheel  from  com 
ing  off,  and  the  whole  load  from  coming  down  to  the  ground. 
The  first  thing  to  be  done  obviously  was  for  all  the  boys  to  take 
hold  of  the  boat,  and  of  the  axle-tree  of  the  truck  on  the  side 
where  the  damage  had  occurred,  and  lift  it  up  a  little,  so  as  to 
allow  of  the  wheel's  being  slipped  back  again  to  its  place. 

"There!"  said  Urbin,  speaking  in  a  tone  of  satisfaction  when 
this  had  been  accomplished,  "so  far  so  good;  and  now  what  are 
we  to  do  next  ?" 

"  Send  back  along  the  road  and  look  for  the  linch-pin,"  said 
one  of  the  boys. 

"Yes,"  said  Urbin,  "that  is  a  good  idea." 

So  saying,  he  looked  about  and  selected  two  boys  to  go  back 
and  see  if  they  could  find  the  lost  pin. 


INSUBORDINATION.  141 


Captain  Urbin  directs  a  search.  Various  expedients  proposed. 

"You  may  go,  Jones,  for  one,"  said  he,  "and  you,  Moses,  for 
another." 

"  It  won't  do  any  good  to  look  for  it,"  said  Moses.  "  There's 
no  knowing  how  far  back  it  may  have  fallen  out.  A  wheel  will 
run  sometimes  half  a  mile  without  any  linch-pin." 

"You  have  nothing  to  do  with  that,"  replied  Urbin.  "You 
have  nothing  to  do  but  to  obey  the  captain's  orders.  You  and 
Jones  go  back  and  look  carefully.  One  of  you  take  one  half  of 
the  road  and  the  other  the  other  half,  and  go  on  till  you  come  to 
the  top  of  the  hill,  and  if  you  don't  find  it  then  you  may  come 
back  again." 

So  Moses  and  Jones  walked  away,  searching  diligently  along 
the  road  as  they  went  to  find  the  linch-pin. 

"  And  now,  boys,"  said  Urbin,  "as  it  is  very  likely  that  they 
may  not  find  it,  we  may  as  well  be  considering  what  we  shall  do 
next,  in  case  they  don't." 

"  Make  a  wooden  linch-pin,"  said  Lingo.  "  I've  got  the  hatch 
et  to  split  out  a  piece  of  wood." 

"No,"  said  Clicket,  "a  wooden  linch-pin  would  not  stand  at 
all.  You  had  better  send  one  of  the  boys  back  to  the  house  and 
get  one  of  the  linch-pins  out  of  the  wagon." 

"  I  would  not  do  that,"  said  Warner.  "  Dr.  Mather  would 
not  allow  it.  Besides,  very  likely  it  would  not  fit.  I  think  we 
can  get  along  without  any  linch-pin  at  all.  We  will  watch  the 
wheel  all  the  way,  and  when  we  see  that  it  is  beginning  to  come 
off,  we  will  stop  and  put  it  on  again." 

While  the  boys  were  thus  offering  their  various  opinions  in 


142  INSUBORDINATION. 


Urbin  makes  a  model.  Orders.  Insubordination. 

respect  to  the  course  to  be  pursued  in  the  emergency,  Urbin  said 
nothing,  but  was  quietly  employed  in  cutting  out,  with  his  knife, 
a  small,  wedge-shaped  piece  of  wood  from  a  stick  which  he  had 
picked  up  by  the  road  side.  He  was  making  it  of  a  shape  and 
size  suitable  to  fit  the  hole  in  the  end  of  the  axle-tree  where  the 
linch-pin  had  gone  in. 

"Are  you  going  to  make  a  wooden  linch-pin?"  asked  a  boy 
named  Carleton. 

"No,"  said  Urbin,  "I  am  only  making  a  wedge  to  take  the 
measure  of  the  hole." 

"  And  what  are  you  going  to  do  then  ?"  asked  Carleton. 

"I  am  going  to  send  you  with  it  to  Danvil's,"  replied  Urbin, 
"to  get  a  new  linch-pin  made." 

"No,"  said  Carleton. 

"Yes,"  said  Urbin. 

"  You  must  not  send  me,"  rejoined  Carleton.  "  You  ought  to 
send  Lingo." 

"  That's  a  question  for  me  to  consider,"  replied  Urbin.  "  The 
boys  chose  me  captain." 

"Well,  you  won't  send  me,"  said  Carleton. 

"I  shall  give  you  the  order,"  replied  Urbin,  "and,  of  course, 
that  is  all  that  I  can  do.  You  can  obey  it  or  not,  just  as  you 
please." 

"  But  it  is  a  great  way  to  Danvil's,"  said  Carleton.  "  It  is  as 
much  as  a  quarter  of  a  mile." 

"  I  don't  think  it  is  half  a  quarter  of  a  mile,"  rejoined  Urbin. 
"  It  will  take  you  five  minutes  to  go  there  and  five  minutes  to 


INSUBORDINATION.  143 


Carleton  refuses  to  obey.  Lingo's  offer.  Volunteers. 

come  back,  and  it  may  take  Danvil  five  minutes  to  make  a  new 
pin.  In  fact,  it  is  very  likely  that  he  will  have  one  to  fit,  all 
ready,  among  his  old  iron.  While  you  are  gone  we  will  be  mov 
ing  on  slowly,  and  you  can  come  on  across  and  overtake  us  at 
the  corner." 

Danvil,  as  the  reader  will  easily  understand,  was  the  village 
blacksmith. 

"  I  don't  think  it  is  a  good  plan  at  all,"  said  Carleton.  "And, 
besides,  if  you  send  anybody,  you  ought  to  send  Lingo.  That's 
just  what  he  came  with  us  for — to  be  the  errand-boy." 

"It  is  for  the  captain  to  consider  who  is  the  best  to  send,"  re 
plied  Urbin. 

"I'll  go,  Mr.  Urbin,  if  you  wish,"  said  Lingo. 

"  Very  well,"  said  Urbin  ;  "  we  will  wait  and  see  whether  the 
boys  find  the  old  linch-pin  or  not  in  the  road." 

In  a  few  minutes  the  two  boys  who  had  been  sent  along  the 
road  were  seen  coming  back,  searching  carefully,  as  they  came. 
They  soon  arrived  and  reported  that  the  linch-pin  was  nowhere 
to  be  found. 

"  Then,  Carleton,"  said  Urbin,  "I  want  you  to  take  this  wood 
en  wedge  for  a  measure,  and  go  to  Danvil's  with  it.  I  have 
pressed  it  into  the  hole,  so  that  he  will  see  by  the  marks  on  it 
just  how  large  the  hole  is.  And  I'll  give  you  some  money  to 
pay." 

"  No,"  said  Carleton,  "  I  don't  want  to  go." 

"I'll  go,"  said  one  of  the  other  boys.  "And  I."  "And  I," 
said  others. 


144  INSUBORDINATION. 


What  Urbin  did  when  Carleton  refused  to  obey. 


"No, "replied  Urbin;  "I  have  given  the  order  to  Carleton, 
and  if  he  will  not  go  I'll  go  myself." 

Urbin  was  a  very  strict  disciplinarian  in  all  these  cases.  He 
always  obeyed  very  implicitly  when  any  other  boy  was  captain ; 
and  although,  when  he  was  captain  himself,  he  generally  allowed 
the  expedition  to  go  on  in  its  natural  course,  and  seldom  inter 
posed  with  unnecessary  commands,  as  some  boys  would  have 
done,  as  if  just  to  display  their,  authority,  still,  whenever  he  gave 
a  command,  he  was  very  firm  in  insisting  on  its  being  obeyed. 

"There  is  no  reason  in  making  me  go,"  said  Carleton,  "when 
there  are  so  many  boys  ready  to  go  in  my  place,  and  when  Lin 
go  is  here  too,  on  purpose  to  do  such  things." 

"It  is  just  as  you  please,"  said  Urbin.  "You  can  go  or  not. 
If  you  don't  go,  I'll  go  myself." 

"  Then  you  may  go  yourself,"  replied  Carleton. 

"Well,  boys,"  said  Urbin,  "you  may  go  on  slowly  with  the 
boat.  You  fellows  behind  there  must  watch  the  wheel,  and  give 
the  alarm  the  instant  you  see  it  coming  off.  You  can  go  on  so  to 
the  corner,  and  wait  there  till  I  come." 

So  the  boys  went  on.  They  succeeded  in  getting  to  the  cor 
ner  with  very  little  difficulty.  The  wheel  began  to  come  off 
once,  and  they  stopped  and  put  it  on  again.  They  also  pro 
ceeded  very  slowly  all  the  way.  Thus  they  arrived  at  last  safely 
at  the  place  of  rendezvous,  and  there,  after  waiting  about  ten 
minutes,  they  saw  Urbin  coming  with  a  new  linch-pin  in  his 
hand. 

" Now,  boys,"  said  Urbin,  "we  can  go  ahead  strong  again." 


INSUBORDINATION.  145 


The  boat  padlock.  An  accident. 


After  this  the  expedition  went  on  very  prosperously.  To  give 
a  full  account  of  the  various  adventures  which  the  party  met 
with — of  the  launching  of  the  boat  upon  the  river,  and  of  the 
long  row  which  they  took  through  a  shady  place  of  still  water 
in  the  midst  of  a  dense  wood,  and  of  the  fishes  which  they 
caught,  and  of  the  berries  which  they  gathered,  would  take  me 
too  far  away  from  the  subject  of  the  chapter,  which  is  that  of 
the  difficulties  merely  to  which  the  expedition  gave  rise.  The 
disobedience  of  Carleton  to  Urbin's  order  was  one  of  these  diffi 
culties,  and  an  accident  which  happened  to  Urbin  himself  was 
the  origin  of  the  other.  The  accident  happened  as  follows : 

I  have  already  said  that  the  boat  was  fastened  by  a  padlock, 
and  that  the  key  of  the  padlock  was  in  the  charge  of  Murray, 
who  was  the  custodian  of  the  boat  as  well  as  of  the  truck.  Now, 
whenever  the  boys  took  the  boat  down  upon  the  river,  if  they 
had  occasion  to  leave  it  any  where,  they  always  locked  it  by 
means  of  this  padlock,  and  took  the  key  with  them. 

It  happened  that  during  this  excursion  the  boys  left  the  boat. 
They  left  it  for  the  purpose  of  taking  a  ramble  in  the  woods. 
When,  at  length,  the  time  arrived  for  them  to  return,  they  went 
back  to  the  boat,  and  Urbin  unlocked  the  padlock.  He  took  the 
padlock  out  from  the  link  of  the  chain  in  which  it  had  been  in 
serted,  and  then  tossed  the  chain  into  the  boat.  He  also  at 
tempted  to  toss  the  padlock  in,  but  instead  of  going  where  he 
had  intended,  namely,  into  the  bottom  of  the  boat,  it  struck  upon 
one  of  the  thwarts  and  immediately  bounded  overboard,  and  in 
an  instant  padlock,  key,  and  all  went  straight  to  the  bottom. 
31  K 


146  INSUBORDINATION. 


Urbin  would  not  break  a  good  law  for  the  sake  of  twenty-five  cents. 

The  boys  fished  about  for  a  long  time  with  a  boat-hook,  in 
hopes  to  recover  the  padlock,  but  in  vain.  Some  of  the  boys, 
who  were  good  swimmers,  proposed  to  undress  and  dive  for  it ; 
but  it  was  a  rule  of  the  school  that  they  were  never  to  bathe  in 
the  river  unless  one  of  the  teachers  were  with  them.  The  boys 
said  they  did  not  believe  that  Dr.  Mather  would  have  any  objec 
tion  to  their  going  in,  under  the  circumstances  of  the  case,  but 
Urbin  would  not  listen  to  the  proposal.  He  said  that  a  new  pad 
lock  could  be  bought  for  twenty-five  cents,  and  he  would  not  have 
any  thing  to  do  with  breaking  a  good  law  for  such  a  small  con 
sideration  as  that. 

Accordingly,  when  they  got  tired  of  fishing  about  for  the  pad 
lock  with  the  boat-hook,  they  gave  up  the  search  and  all  went 
home. 

The  next  day  Urbin  brought  an  action  against  Carleton  in  the 
court  for  disobedience  of  orders  on  an  expedition,  and  the  case 
was  formally  tried.  Urbin  managed  his  own  case,  but  Warner 
appeared  for  Carleton.  The  trial  proceeded  for  a  time  in  the 
usual  form.  Urbin  proved,  by  proper  witnesses,  that  he  was 
fairly  chosen  captain  of  the  expedition,  and  that,  when  the  linch 
pin  was  lost,  he  gave  Carleton  a  plain  and  distinct  order  to  go  to 
the  blacksmith's  to  get  a  new  one.  He  proved,  also,  that  such 
an  order  as  that  was  fully  within  his  powers  as  captain,  it  being 
a  practice  for  the  captains  to  send  any  of  the  boys  away  on  er 
rands  and  messages  whenever  it  was  necessary  to  promote  the 
good  of  the  expedition,  and  that  it  was  universally  understood 
that  the  boys  were  bound  to  obey  such  commands.  Having 


INSUBORDINATION.  147 


The  case  of  Carleton's  refusal  in  court. 


proved  these  things  he  rested  his  case,  claiming,  however,  that, 
as  a  punishment  for  his  insubordination  and  disobedience,  Carle- 
ton  should  be  fined  a  good  round  sum,  to  go  into  the  black  box. 
Of  course,  he  did  not  claim  any  damages  for  himself.  It  was  only 
a  public  offense. 

The  other  side  were  then  called  upon  for  the  defense,  and 
when  they  were  about  to  introduce  witnesses,  Urbin  asked  what 
they  intended  to  prove.  Warner  said  he  meant  to  prove  that  it 
was  not  a  good  plan  to  send  to  the  blacksmith's  for  a  new  linch 
pin,  and  that,  if  it  was,  Carleton  was  not  the  best  person  to  send. 
But  Urbin  objected  to  any  witnesses  being  called  to  such  points 
as  these,  and  so  he  and  Warner  argued  the  case  before  the  judge. 
After  hearing  their  arguments,  and  taking  a  little  time  for  consid 
eration,  the  judge  decided  that  the  witnesses  could  not  be  exam 
ined,  and  he  gave  the  reasons  for  it  as  follows : 

The  question  whether  or  not  the  order  which  Urbin  gave  to 
Carleton  was  a  wise  one  or  not,  or  whether  the  thing  which  he 
ordered  Carleton  to  do  was  the  best  thing  to  be  done  under  the 
circumstances,  is  a  matter  of  judgment  and  discretion ;  and  it  is 
the  captain's  judgment  and  discretion,  and  not  the  jury's,  which 
are  to  decide  it.  That  is  the  very  thing  that  you  choose  a  cap 
tain  for — to  make  use  of  his  judgment  and  discretion,  instead  of 
your  own,  in  the  expedition.  His  judgment  may  be  good  or  it 
may  be  bad.  You  must  consider  Avhich  it  is  likely  to  be  when  you 
appoint  him  ;  but  after  you  appoint  him  you  must  submit  to  his 
decisions,  if  the  things  that  he  requires  are  within  the  scope  of 
the  powers  that  you  have  conferred  upon  him.  A  jury  can  not, 


148  INSUBORDINATION. 


The  opinion  of  Judge  Justin.  Evidence  concluded. 

in  such  a  case,  look  into  the  question  of  the  wisdom  or  want  of 
wisdom  of  what  he  does  at  all. 

If  Carleton  can  bring  forward  any  witnesses  to  show  that  Ur 
bin  was  not  duly  appointed  captain,  and  so  had  no  right  to  com 
mand  ;  or  that  he  did  not  distinctly  give  the  command ;  or  that 
the  command  was  one  which  was  beyond  his  powers  ;  or  that  he, 
Carleton,  did  really  obey  it,  any  such  points  as  these  the  jury 
can  consider,  because  they  are  outside  questions,  as  it  were,  and 
deciding  them  does  not  interfere  with  the  powers  conferred  by 
being  appointed  to  the  captaincy.  But  if  there  is  no  proof  on 
any  of  these  points — if  Carleton  was  duly  appointed ;  if  the  order 
was  fairly  within  the  scope  of  the  powers  ordinarily  understood 
to  be  conferred  by  such  an  appointment,  and  if  the  command  was 
distinctly  given,  then  that  is  all  that  the  jury  can  inquire  about 
— that  is  to  say,  the  jury  can  determine  whether  Urbin  was  enti 
tled  to  command  or  not,  but  in  the  exercise  of  his  command  they 
can  not  substitute  their  discretion  for  his.  That  would  be  mak 
ing  the  jury  the  captain  of  the  expedition  in  his  place. 

So  Warner  was  not  allowed  to  bring  forward  his  witnesses  to 
prove  that  the  order  was  not  a  good  one,  and  the  taking  of  testi 
mony  was  at  once  closed,  for  he  admitted  that  he  had  no  proof  to 
offer  either  that  Urbin  was  not  chosen  captain,  or  that  Carleton 
did  not  refuse  to  obey  him. 

When  Urbin  came  to  argue  the  case  to  the  jury,  he  alluded 
to  Carleton's  attempt  to  excuse  himself  for  his  disobedience  on 
the  ground  that  the  command  was  not  a  wise  one,  and  said  that 
this,  instead  of  being  any  excuse,  was  only  an  aggravation. 


INSUBORDINATION.  149 


Urbin's  argument.  Obey,  whether  you  think  the  command  wise  or  foolish. 

"When  any  person  is  really  in  authority,"  said  Urbin,  "they 
must  be  obeyed  in  all  things.  What  would  become  of  an  army 
if  the  soldiers  considered  themselves  at  liberty  to  disobey  the 
orders  whenever  they  thought  they  were  not  the  best  orders  that 
could  be  given.  Children  often  have  orders  from  their  parents 
which  they  think  are  unnecessary  or  unwise,  and  are  they,  for 
that  reason,  not  bound  to  obey  them  ?  Those  are  the  very  com 
mands  that  test  the  principle  of  obedience.  The  others  do  not 
test  it  at  all.  It  is  nothing  at  all  to  do  what  your  teacher  or 
your  parent  says,  when  you  see  yourself  that  that  is  the  best 
thing  that  you  can  do.  I  want  to  see  a  boy  obey  when  he  does 
not  see  that  it  is  the  best  thing  that  he  can  do,  and  even  when 
he  is  pretty  sure  that  he  can  see  that  it  is  not  the  best.  At  any 
rate,  that  is  the  kind  of  obedience  that  I  mean  to  have  when  I 
am  captain,  and  a  person  who  does  not  have  that  kind  is  no 
captain  at  all.  He  is  captain  as  long  as  his  soldiers  think  just 
as  he  does,  and  when  they  do  not,  then  they  are  captain — first 
one  and  then  another,  according  as  they  happen  to  think  about 
what  is  best  to  be  done ;  and  what  kind  of  discipline  do  you  call 
that  ?" 

The  jury  brought  in  a  verdict  of  guilty  against  Carleton,  and 
he  was  fined  ten  cents  for  the  black  box. 

Thus  this  question  was  settled ;  but  on  the  following  day  an 
other  one  arose  in  respect  to  the  loss  of  the  padlock.  It  was  a 
rule  of  the  boat  that  the  ordinary  wear  and  tear,  and  all  acci 
dents  arising  from  the  fair  and  proper  use  of  the  boat,  should  be 
paid  by  a  tax  of  two  cents  apiece,  levied  on  all  the  boys  who 


150  INSUBORDINATION. 


Ought  Urbin  to  pay  for  the  padlock  ?  An  amicable  suit 

owned  shares  in  the  boat.  Murray  kept  the  fund  thus  raised. 
When  he  heard  of  the  loss  of  the  padlock,  he  told  Urbin  that  he 
did  not  know  what  ought  to  be  done  about  it. 

"  I  am  not  sure,"  said  he,  "  whether  you  ought  to  pay  for  it, 
or  whether  I  ought  to  buy  a  new  one  out  of  the  fund." 

Urbin  insisted  that  he  ought  not  to  pay  for  it.  It  was  one  of 
those  accidents,  he  said,  that  occurred  in  the  fair  and  proper  use 
of  the  boat,  for  which  nobody  was  to  blame,  and  the  damage  ought 
to  be  made  good  out  of  the  fund. 

"  I  am  inclined  to  think  so  too,"  said  Murray ;  "  but  some  of 
the  boys  may  think  differently,  and  the  fund  is  their  money,  not 
mine,  so  that  I  don't  like  to  decide  the  case  myself.  Suppose  we 
bring  the  question  before  the  court,  and  let  the  judge  and  jury  de 
cide  it." 

"  Agreed !"  said  Urbin.     "  I'll  risk  their  deciding  against  me." 

Urbin's  objection  to  pay  for  the  padlock  did  not  arise  from  any 
avaricious  desire  to  keep  his  money,  for  he  had  paid,  of  his  own 
accord,  for  the  new  linch-pin  half  as  much  as  would  be  required 
for  the  padlock  without  saying  any  thing  about  it.  But  he 
thought  it  was  unjust  that  he  should  be  required  to  pay,  since 
the  padlock  was  lost  by  an  accident  not  to  have  been  foreseen, 
which  befell  him  while  he  was  acting  for  and  in  behalf  of  almost 
the  whole  company  of  boat  proprietors.  So  he  declared  that  he 
would  not  pay,  but  he  said  he  had  no  objection  to  standing  trial. 

The  case  was  accordingly  brought  to  court.  Such  a  suit  as 
this,  brought  by  agreement  between  the  parties,  is  called  an  ami 
cable  suit. 


1NSUBOKD1NATION.  151 


A  decision  against  Urbin.  Urbin  rebels.  The  meeting. 

The  jury  was  appointed,  and  the  case  was  regularly  tried. 
Urbin  did  not,  however,  make  a  very  vigorous  defense,  for  he  was 
confident  that  the  verdict  would  be  in  his  favor.  But,  to  his  utter 
astonishment,  he  found,  when  the  verdict  was  recorded,  that  it  was 
against  him.  He  was  sentenced  to  buy  a  new  padlock,  to  replace 
the  one  that  was  lost. 

Urbin  declared  that  he  would  not  submit  to  so  unjust  a  de 
cision.  He  did  not  care  any  thing  about  the  money,  he  said,  but 
he  would  not  submit  to  be  imposed  upon.  The  loss  of  the  pad 
lock  was  not  his  fault — it  was  an  accident  that  befell  the  expedi 
tion — and  he  was  not  going  to  pay  for  it. 

"  But  the  jury  have  decided  it  against  you,"  said  several  of  the 
boys. 

"  I  don't  care  for  that,"  said  Urbin.  "  I  would  not  pay  the 
money  if  forty  juries  had  decided  it  against  me." 

Things  remained  in  this  state  for  a  day  or  two,  and  then  the 
boys  proposed  to  have  a  meeting  to  consider  what  they  should  do. 
They  asked  Justin  to  come  and  attend  the  meeting,  and  Justin 
said  he  would. 

So  the  meeting  was  held.  Urbin,  and  some  other  boys  who 
took  his  part  in  the  controversy,  did  not  attend.  Most  of  the 
other  boys  were  there,  however,  and  Justin  called  upon  them,  one 
after  another,  to  give  their  opinions. 

Some  of  the  boys,  when  thus  called  upon,  replied  that  they  had 
not  any  thing  to  say.  They  did  not  know,  they  said,  what  was 
the  best  thing  to  be  done.  Others  contented  themselves  with  ex 
pressing  their  approval  of  some  plan  proposed  by  those  who  spoke 


152  INSUBORDINATION. 


Moses  proposes  to  levy  on  Urbin's  foot-balL  Non-intercourse, 

before  it  came  to  their  turn.  The  principal  plans  suggested  were 
the  following: 

Moses  proposed  that  they  should  seize  something  of  Urbin's, 
and  keep  it  until  the  money  was  paid. 

"  That  is  the  way  they  do  in  real  courts,"  said  he.  "  If  it  is 
decided  that  a  man  must  pay  something,  and  he  won't  pay  it, 
they  send  an  officer  to  his  house  and  take  his  furniture,  or  his 
books,  or  any  thing  else  they  can  find,  and  sell  it,  and  so  raise 
the  money.  I  don't  suppose  it  would  be  best  to  sell  any  of  Ur 
bin's  things,  because  nobody  would  want  to  buy  them,  but  we 
might  keep  them  until  he  agreed  to  buy  a  new  padlock." 

"  What  things  could  we  take  ?"  asked  one  of  the  boys. 

"  Why,  we  might  take  his  fishing-pole  and  line,"  replied  Mo 
ses,  "or  his  foot-ball.  He  has  got  a  first-rate  foot-ball." 

Two  or  three  of  the  boys  expressed  an  immediate  approval  of 
this  plan,  but  some  of  the  others  looked  so  grave  and  doubtful 
when  it  was  proposed  that  it  was  soon  dropped. 

Dana  suggested  that  they  should  resolve  not  to  have  any  thing 
more  to  do  with  him  until  he  would  submit  to  the  verdict. 

"We  might  make  a  rule  among  ourselves,"  said  he,  "that  we 
won't  play  with  him,  nor  let  him  play  with  us,  till  he  agrees  to 
pay  for  the  padlock.  We  have  a  right  to  do  that,  though  it  is 
rather  doubtful  whether  we  have  a  right  to  seize  his  things,  as 
Moses  proposed.  We  have  certainly  a  right  to  say  we  won't  play 
with  him,  if  we  choose,  and  I  think  he'll  soon  get  tired  of  playing 
all  alone." 

To  this  proposal  Ogden  replied  that  he  thought  it  might,  per- 


INSUBORDINATION.  153 


Jones'  plan.  Parks'  plan.  The  contribution. 

haps,  be  a  very  good  one,  if  all  the  boys  in  the  school  were  united 
in  it. 

"  I  do  not  think,  however,"  said  he,  "  that  we  should  be  all 
united.  Indeed,  there  are  several  boys  who  take  Urbin's  part 
already,  and  there  are  probably  some  others  who  would  not  be 
strict  in  following  out  our  rule  not  to  play  with  him ;  so  that 
the  end  of  it  would  be  that  the  boys  would  be  divided  into  two 
parties,  those  who  would  play  with  Urbin  and  those  who  would 
not,  and  that  would  be  a  bad  state  of  things." 

Jones  proposed  that  they  should  state  the  case  to  Dr.  Mather, 
and  ask  him  to  take  money  enough  out  of  Urbin's  pocket-money 
to  pay  for  the  padlock. 

"He  would  do  it,  I  am  sure,"  said  Jones.  "And,  in  fact,  I 
believe  that,  as  soon  as  Urbin  knew  that  we  were  going  to  do 
that,  he  would  pay  at  once.  He  would  be  ashamed  to  have  Dr. 
Mather  know  any  thing  about  it." 

Parks  was  against  troubling  Dr.  Mather  with  the  affair  at  all. 
"Indeed,"  said  he,  "  I  don't  think  it  is  worth  having  any  trouble 
about  for  any  of  us.  Let  us  make  a  contribution  among  our 
selves,  and  raise  money  to  pay  for  the  new  padlock.  Two  cents 
apiece  for  three  quarters  of  us  will  be  enough  to  make  up  all  that 
is  wanted." 

"  Why,  that  will  be  giving  up  to  him  altogether,"  said  Moses. 

"Very  well,"  replied  Parks.  "What  is  the  harm  in  giving 
up  to  him.  If  he  is  not  willing  to  abide  by  the  decisions  of  the 
court,  there  are  enough  of  us  left  who  are  willing,  so  that  we  can 
go  on  just  as  well.  Only,  after  this,  we  won't  try  any  more  cases 


154  INSUBORDINATION. 


No  plan  adopted.  Justin  meets  Urbin.  Conversation. 

that  he  is  concerned  in.  We  will  tell  him  it  is  of  no  use  for  us 
to  try  his  cases,  for  he  won't  submit  to  the  verdicts." 

Parks'  plan  was  quite  favorably  received,  but  still  the  boys 
did  not  seem  to  be  wholly  prepared  to  adopt  it.  The  vote  was 
taken,  too,  on  the  various  other  plans  proposed,  and,  although 
several  persons  voted  for  each  one,  no  one  had  a  majority  of 
votes,  and  so  no  one  was  carried.  So  Justin  proposed,  at  last, 
that  they  should  not  decide  upon  any  thing  that  day,  but  should 
adjourn  the  meeting  until  the  next  day,  and  thus  have  more  time 
to  consider  what  course  it  would  be  best  to  pursue ;  so  the  meet 
ing  was  adjourned. 

That  evening,  as  Justin  was  walking  along  the  road  a  little 
before  sunset,  he  met  Urbin  coming  back  from  a  fishing  excur 
sion,  with  his  fishing-pole  over  his  shoulder.  Justin  stopped  to 
ask  him  what  luck  he  had  had  with  his  fishing,  and  then  turned 
round  and  walked  back  with  him  toward  the  house,  conversing  as 
they  went. 

"I  heard  that  the  boys  were  going  to  have  a  meeting  about 
me,"  said  Urbin.  "  Did  they  have  it  ?" 

"Yes,"  replied  Justin,  "and  I  was  there." 

"  What  did  they  conclude  to  do  ?"  asked  Urbin. 

"  They  did  not  decide  upon  any  thing,"  replied  Justin.  "  The 
truth  is,  they  do  not  know  what  to  do.  There  were  a  number  of 
plans  proposed,  but  the  boys  were  not  really  satisfied  with  any 
of  them." 

"  Which  did  they  like  the  best  ?"  asked  Urbin. 

"Why,  the  one  which  they  seemed  to  like  the  best,"  replied 


INSUBORDINATION.  155 


Ought  a  man  to  submit  to  a  wrong  verdict? 


Justin,  "  was  to  give  it  up,  and  raise  a  contribution  among  them 
selves  to  pay  for  the  padlock.  The  case  had  been  tried,  and  the 
jury  had  given  a  verdict ;  but  if  you  were  determined  not  to  sub 
mit  to  the  verdict,  they  thought  that,  perhaps,  the  best  thing  that 
they  could  do  would  be  to  give  it  up." 

"  You  see,  I  don't  think  it  was  a  righteous  verdict,"  said  Ur- 
bin. 

"Neither  do  I,"  said  Justin.  "If  I  had  been  on  the  jury  I 
should  not  have  agreed  to  such  a  verdict." 

"  And  so  I  ought  not  to  submit  to  it." 

"  On  the  contrary,"  said  Justin,  "  I  think  you  ought  to  submit 
to  it,  for  that  very  reason." 

"  Why !  because  it  is  unjust  ?"  exclaimed  Urbin. 

"  Let  us  look  at  it  a  little  impartially,"  said  Justin.  "  Do  you 
think  it  is  a  good  plan  for  us  to  have  such  a  court  as  this  ?" 

"  Yes,  it  is  an  excellent  plan,  provided  the  juries  will  be  fair," 
replied  Urbin. 

"  Well,  now,  do  you  suppose  it  is  possible,"  said  Justin,  "  to 
have  a  court,  and  juries,  and  trials,  even  among  men,  without 
there  being  sometimes  an  unjust  judgment  rendered?" 

"No,"  said  Urbin,  "I  don't  think  it  is." 

"And  still  more  is  it  impossible  among  boys,"  rejoined  Jus 
tin. 

"  Of  course,"  said  Urbin. 

"  Then  the  question  comes,  What  is  to  be  done  when  unjust 
sentences  are  rendered?"  said  Justin.  "According  to  your  the 
ory,  when  a  boy  thinks  that  the  sentence  is  just,  then  he  is  to 


156  INSUBORDINATION. 


Argument  between  Urbin  and  Justin  about  submitting  to  the  court. 

submit  to  it,  but  when  he  thinks  it  is  unjust,  then  he  is  not  to 
submit." 

"Why  no,"  replied  Urbin,  "that  is  not  my  theory." 

"That  seems  to  be  your  practice,  at  any  rate,"  replied  Jus 
tin. 

"  No,"  said  Urbin,  "  it  is  not  exactly  so.  You  see,  the  reason 
why  I  will  not  submit  to  the  verdict  is  not  because  I  happen  to 
think  it  is  not  just,  but  because  it  really  is  not.  Even  you  your 
self  say  it  was  not  right." 

"  Yes, "said  Justin, "  and  that  shows  the  state  of  the  case  ex 
actly.  The  regular  jury  appointed  for  the  trial,  after  hearing  the 
evidence  and  the  arguments,  come  to  one  conclusion,  and  you 
and  I,  thinking  and  talking  about  it  out  of  court,  come  to  another, 
and  so  you  conclude  to  set  the  judgment  of  the  jury  aside.  Now 
don't  you  see  that  there  would  be  an  end  to  all  the  authority 
of  the  court  if  a  person  who  lost  his  case  in  it  could  refuse  to 
abide  by  the  decision  because  he  did  not  agree  with  the  jury  in 
opinion  ?" 

"  Why — I  don't  know,"  said  Urbin,  hesitating. 

"It  is  just  like  Carleton's  refusing  to  obey  your  order  because 
he  himself  thought  it  was  not  a  wise  one." 

"But  it  seems  to  me  that  that  is  a  different  thing,"  rejoined 
Urbin. 

"It  is  different  in  some  respects,"  said  Justin,  " but  the  prin 
ciple  seems  to  me  to  be  the  same.  You  were  appointed  captain, 
and,  as  captain,  your  discretion  was  to  govern  as  to  what  was 
wisest  to  be  done.  In  the  same  way,  those  two  boys  were  ap- 


INSUBORDINATION.  157 


Carleton' s  insubordination  compared  with  Urbin's. 


pointed  jury,  and,  as  jury,  their  judgment  was  to  decide  as  to 
what  was  just  and  right  to  be  done.  You  gave  your  order;  it 
was  within  the  scope  of  your  powers.  They  gave  their  verdict ; 
it  was  within  the  scope  of  their  powers.  Carleton  refused  to 
obey,  because,  as  he  said,  the  command  was  not  a  wise  one.  You 
refuse  to  submit,  because,  as  you  say,  the  verdict  is  not  a  just 
one.  Yon  would  not  allow  him  to  prove  that  the  order  was  not 
a  wise  one,  for  you  maintained  that  he  had  nothing  to  do  with 
that.  You  contended  that  the  orders  of  a  captain,  once  in  com 
mand,  are  to  be  obeyed,  whether  they  are  wise  or  not.  In  the 
same  manner,  the  boys  now  say  that  the  verdict  of  a  jury  is  to 
be  submitted  to,  whether  it  is  just  or  not,  provided  their  decision 
is  within  the  scope  of  their  powers." 

"  But  you  yourself,  as  judge,  once  set  aside  the  verdict  of  a 
jury  because  it  was  not  just,"  said  Urbin. 

"  No,"  replied  Justin,  "  not  because  it  was  not  just,  but  be 
cause  it  was  beyond  the  scope  of  their  powers  to  give  such  a  ver 
dict.  They  brought  in  a  verdict  condemning  a  boy  who  was  not 
on  trial.  The  verdict  was  just  enough,  for  that  boy  was  really 
guilty ;  but  it  was  beyond  the  scope  of  that  jury's  powers  to  con 
demn  him.  If  Carleton  could  have  proved  that  your  order  was 
one  beyond  a  captain's  power,  then  he  would  have  been  heard ; 
and  so,  if  you  could  show  that  the  jury,  in  giving  a  verdict  against 
you,  had  gone  beyond  their  powers,  then  you  would  be  heard,  and 
the  verdict  might  be  set  aside.  But  you  do  not  do  that.  You 
can  not  do  that.  The  jury  undoubtedly  had  full  power  to  decide 
either  for  you  or  against  you,  just  as  you,  when  captain,  had  power 


158  INSUBOEDINATION. 


Effect  of  obedience  in  sustaining  authority. 


to  determine  who  should  go  to  the  blacksmith's.  Thus  jour  re- 
fiisal  to  submit  because  you  differ  in  judgment  from  the  jury, 
seems  to  me  exactly  like  Carleton's  refusing  to  submit  because 
he  differed  in  judgment  from  you."' 

"  I  did  not  think  of  that  before,"  said  Urbin. 

"A  boy  who  obeys  an  order  when  he  does  not  think  it  is  a 
good  one,  does  an  excellent  thing,"  continued  Justin,  "for,  by  so 
doing,  he  sustains  the  authority  of  the  person  who  gives  the  or 
der  in  a  very  effectual  manner.  It  is  just  so  with  a  boy  who 
submits  to  an  unjust  decision  of  a  jury.  He  does  a  great  deal, 
by  so  doing,  to  sustain  the  authority  of  the  court." 

"  But,"  said  Urbin,  "  they  haven't  any  right  to  compel  me  to 
pay  any  fine,  even  if  I  ought  to  pay  it ;  so  that  if  I  submit  to  pay 
it  where  I  ought  to,  that  is  more  than  they  could  compel  me  to, 
and  I  think  that  if  they  want  to  make  me  pay  an  unjust  fine,  I 
ought  not  to." 

"  On  the  contrary,"  said  Justin,  "  they  have  not  undertaken  to 
compel  you  to  do  any  thing.  In  fact,  this  court  has  no  power  to 
compel  obedience  to  its  decisions.  In  courts  of  justice  among 
men,  there  is  an  officer,  called  the  sheriff,  appointed  to  carry  out 
the  judgments  of  the  court.  But  we  have  no  sheriff,  and  we  could 
not  use  one  if  we  were  to  appoint  him,  because  every  boy  is  at 
liberty  to  disregard  the  court  if  he  chooses.  So  in  our  court  the 
authority  of  the  decisions  arises  from  the  readiness  with  which  the 
boys  all  submit  to  them.  If  you  were  to  disregard  this  decision, 
it  would  weaken  the  authority  of  the  court.  If  you  were  to  ac 
quiesce  in  it,  you  would  add  to  its  authority.  The  boys  would 


IXSUBOEDINATIO1?. 


I'rbin  decides  to  acquiesce  and  replace  the  padlock. 


say,  if  you  submitted  to  this  verdict,  4This  is  a  hard  case  for 
Urbin,  but  he  submits  because  the  court  have  so  decided.'  And 
so,  when  the  next  case  happens  in  which  a  boy  is  dissatisfied 
with  the  decision  that  is  made,  he  will  be  much  less  likely  to  re 
fuse  to  submit ;  whereas,  if  you  refuse  to  submit  when  you  think 
the  verdict  is  wrong,  then  the  other  boys  must  have  the  same 
liberty,  and  the  authority  of  the  court  will  be  at*a»-end.  Now  if 
you  think  that  the  decisions  of  the  court  are  genera^y  just,  and 
that  these  trials  which  we  have  help  to  settle  disputes  ^amicably, 
which  might  otherwise  become  quarrels,  then  is  it  not  \etter  to 
sustain  the  authority  of  the  court  by  yielding  to  a  hard  juogment, 
rather  than  to  weaken  its  ascendency  by  refusing  to  be  ^>und 
by  it."  \ 

"  Well,"  said  Urbin,  "  I  don't  care  so  much  about  it  as  I  did, 
and  I  believe  I'll  pay  for  the  padlock  ;  and  you  may  tell  the 
boys  so ;  for  I  think  the  court  is  an  excellent  way  of  settling  dif 
ficulties  among  the  boys." 

"  Will  you  ?"  said  Justin.  "  I  am  very  glad  to  hear  you  say 
so,  for  now,  after  this,  I  don't  think  we  shall  have  any  more 
trouble.  Whenever  the  boys  think  that  the  verdict  rendered 
against  them  is  unjust,  they'll  say  to  themselves,  *  I  don't  think 
it  is  right ;  but  Urbin  submitted  when  he  did  not  think  it  was 
right,  and  so  will  I."  " 

After  this  the  court  continued  in  operation  a  long  time,  and 
nobody  refused  to  submit  to  the  decisions  of  the  juries.  Some 
times,  indeed,  a  verdict  was  given  which  transcended  the  powers 
of  the  jury,  and  then  the  judge  would  set  it  aside,  and  order  a 


160  INSUBORDINATION. 


Great  advantages  of  the  court  of  Momingdale. 


new  trial ;  but,  unless  the  decision  was  thus  formally  annulled  by 
the  proper  authority,  nobody  refused  to  submit  to  it.  Thus  the 
court  was  not  only  the  means  of  settling  a  great  many  disputes  in 
a  rational  and  manly  way,  but  it  was  a  means  of  great  improve 
ment  and  instruction  to  the  boys.  They  all  admitted,  however, 
that  the  successful  working  of  the  system  was  due,  in  a  great  de 
gree,  to  the  tact  and  skill,  and  to  the  legal  attainments,  unusual 
for  a  boy  of  his  years,  displayed  by  Judge  Justin. 


THE    END. 


TTXTT,  LI«RARY 

UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

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